Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 11, 2014

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When does a rap become a threat? Supreme Court Chief Justice John Roberts is listening to Eminem in order to figure it out.

As reported by the New York Times, the case before the high court involves rap lyrics posted on Facebook by Anthony Elonis, a Pennsylvania man who uses the rap name “Tone Dougie.”

His violent lyrics, many of them directed at his estranged wife, included things like:

  • Wanting to see a Halloween costume that included his wife’s “head on a stick”
  • “Hell hath no fury like a crazy man in a kindergarten class.”
  • Fantasizing about killing an FBI agent

Some of the Facebook posts indicated that they were intended as “art” or “therapy.”

Elonis’s estranged wife testified that the posts made her feel threatened, and that she feared for her own life and the lives of her children and family members.

Threats as a Federal Offense

Supreme CourtMr. Elonis was convicted under a federal law that prohibits communicating “any threat to injure the person of another” and was sentenced to 44 months in prison.

Mr. Elonis’s lawyer told the Supreme Court that his client’s Facebook posts had elements of entertainment.

Justice Samuel Alito was skeptical of this argument:

This sounds like a road map for threatening a spouse and getting away with it. 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.

Chief Justice Roberts questioned whether lyrics from Eminem’s “’97 Bonnie and Clyde” could subject the performer to prosecution. That song includes lines like:

Da-da made a nice bed for mommy at the bottom of the lake
Here, you wanna help da-da tie a rope around this rock? (yeah!)
We’ll tie it to her footsie then we’ll roll her off the dock

The First Amendment and Free Speech

The First Amendment to the US Constitution protects free speech, but there are many exceptions to this right. One classic example is that there’s no right to yell “fire” in a crowded theater (if there isn’t actually a fire), as this could lead to a panic.

Other free speech exceptions include:

  • Incitement to violence
  • False statements of fact
  • Obscenity
  • Child pornography
  • “Fighting words”
  • Offensive speech
  • Threats

What’s a Threat?

However, what constitutes a “true threat” isn’t well-defined under US law – hence the need for the Supreme Court case.

Lower courts in the Elonis case found that all that’s required to show a threat is that a “reasonable person” would foresee that others could view their statements “as a serious expression of an intention to inflict bodily injury or take the life of an individual.”

One lower court judge commented that a threat could be distinguished “from idle or careless talk, exaggeration, something said in a joking manner or an outburst of transitory anger.”

Chief Justice Roberts asked whether a “reasonable person” should be defined to include “a reasonable teenager” on the Internet.

After laughter in the courtroom, the government’s lawyer, who is supporting the prosecution of Mr. Elonis, questioned whether there was such a thing as a reasonable teenager.

Do you feel threatened?

If you feel threatened, consider contacting your local police. If the threat comes from a family or household member, you might want to contact a family lawyer about obtaining a domestic violence restraining order.