U.S. Supreme Court to decide whether angry Facebook posts should be protected by the First Amendment- oral argument Dec. 1, 2014

On December 1, 2014, the US Supreme Court considered whether aggressive posting on Facebook should be considered as a “true threat” violating federal law or as a mere exercise of free speech right protected . Elonis v. United States.

The posts in question were “directed” to the former wife of the author of the posting. While the man was convicted for of threatening to injure another person, he argued that his posting, which included the lyrics of rap songs, were an attempt to deal with the pain of his personal problems and not specific threats to harm anyone.

According to the man’s attorney, in ordered to convict the man for threatening his ex-wife, the Government should prove his “subjective intent to place the listener in fear” [emphasis added]: only if petitioner knew that his lyrics’ subject is in fear, “he …[didn’t] have a right to continue on”.

Chief Justice John Roberts Jr. pointed out that all the violators could claim that their threats are “therapeutic”, or “a good thing” or “it’s art” to prove the lack of a specific intent. Justice Samuel Alito Jr. said that the requirement of subjective intent could sound “like a roadmap for threatening a spouse and getting away with it.  So you ­­put it in rhyme and you put some stuff about the Internet on it and you say, I’m an aspiring rap artist. And so then you are free from prosecution”.

Deputy Solicitor General Michael Dreeben highlighted that true threats “cause fear and disruption to society and to the individuals who are targeted”. Individuals must understand what they are saying and should be held accountable for the consequences of their speech: “the presumption is that when you speak English words and you’re an English speaker, you’re accountable for the consequences”. According to Dreeben “What we want is a standard that holds accountable people for the ordinary and natural meaning of the words that they say in context.”

Chief Justice John Roberts Jr. asked whether a rap artist shall be held accountable of threatening when rapping about murdering a spouse. Drebben’s answer was that the context of statement is a critical part of the context. The purpose of communication of a rap artist is entertainment.

Justice Elena Kagan pointed out that the standard advocated by the government – and consisting essentially in the knowledge by a reasonable man of his words consequences – is not typically used in the First Amendment context: “We typically say that the First Amendment requires a kind of a buffer zone to ensure that even stuff that is wrongful maybe is permitted because we don’t want to chill innocent behavior”. Justice Kagan wondered if “some kind of buffer zone” should be allowed here past the sort of reasonable ­man negligence standard.

Elonis v. United States Oral Argument Transcripts are available at http://www.supremecourt…

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Proceeding and orders history of Elonis v. United States is available at http://www.scotusblog…


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