Supreme Court Quotes Eminem As It Explores The Difference Between Free Speech And 'True Threats'

from the free-speech-ain't-free dept

Tue, Dec 2nd 2014 8:34am — Mike Masnick

A few months back, we discussed how the Supreme Court was going to hear the case of Anthony Elonis, who had been convicted for making "threats" on Facebook directed at his ex-wife. Elonis, who claims to be an aspiring rap artist, says they were just lyrics, and he wasn't making any actual threat. On Monday, the Supreme Court had the oral arguments, and it gave Chief Justice John Roberts a chance to demonstrate his rapping skills [pdf] by quoting Eminem. The government's lawyer, Michael Dreeben tried to play it off as different, because people would be entertained by Eminem, but that just raised more questions:

CHIEF JUSTICE ROBERTS: What about the language at pages 54 to 55 of the Petitioner's brief? You know, "Dada make a nice bed for mommy at the bottom of the lake," "tie a rope around a rock," this is during the context of a domestic dispute between a husband and wife. "There goes mama splashing in the water, no more fighting with dad," you know, all that stuff.

Now, under your test, could that be prosecuted.

MR. DREEBEN: No. Because if you look at the context of these statements

CHIEF JUSTICE ROBERTS: Because Eminem said it instead of somebody else?

MR. DREEBEN: Because Eminem said it at a concert where people are going to be entertained. This is a critical part of the context. It wasn't as if he stated it to her in private or on a Facebook page after having received a protection from abuse order. It wasn't as if he appropriated a style of rap that wasn't anything that he had been doing previously in the marriage and all of a sudden tried to express violent statements that way.

In the context, I think any reasonable person would conclude at a minimum that there is ambiguity about these statements being a serious intention of an expression to do harm. And this is critical here. We're talking about an area in which if the jury finds that it's ambiguous, it has to acquit. It has to conclude that this is how these statements should be interpreted.

CHIEF JUSTICE ROBERTS: Well, yes, but you're dealing with some very inflammatory language. The question is whether or not the jury is going to be swept away with the language as opposed to making the subtle determinations you've been talking about.

Justice Samuel Alito seemed ready to toss the First Amendment right out the window because, apparently, anyone can use it:

Well, this sounds 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.

This reminds me of the claims about how a "source protection" law for journalists wouldn't be any good because anyone can claim to be a journalist. The answer, again, should be so what? Beyond the fact it's crazy unlikely that everyone who is actually threatening their ex-wives are going to make it rhyme and claim it's just verse, the actual issue at law here makes this question totally irrelevant. The issue is whether or not there was a "true threat" at all, and if Elonis actually intended to do anything or if he was just mouthing off.

And, indeed, the court does wrestle with what the hell "true threats" mean, with Justice Kennedy, in particular, finding that concept (from the Supreme Court of the past) to be a particularly unhelpful phrasing. Right out of the gate at the beginning he noted:

I'm not sure that the Court did either the law or the English language much of a good service when it said "true threat." It could mean so many things. It could mean that you really intend to carry it out, A; you really intend to intimidate the person; or that no one could possibly believe it.

Meanwhile, Justice Ruth Bader Ginsburg noted the problem of showing someone's mindset:

How does one prove what's in somebody else's mind? This case, the standard was would a reasonable person think that the words would put someone in fear, and reasonable people can make that judgment. But how would the government prove whether this threat in the mind of the threatener was genuine?

Again, I don't think anyone can (or should) prove what's really going on in someone's mind, but it seems like it's perfectly reasonable to explore if there is any other evidence to support the idea that someone is out to do someone harm, that goes beyond just posting about it on Facebook (which, frankly, seems like a really dumb way to plan out how to harm someone, seeing as you've made it pretty clear you've done any such harm). But, even that doesn't fully cover the issue in the case, which focused more on whether or not Elonis wanted his wife to be afraid, rather than if he was actually intending to do her harm (and, yes, there's a fine line mixed in there somewhere).

No doubt, Elonis did an awful lot of things that were clearly designed to upset his ex-wife. But how much of that is protected online speech? As always, reading the tea leaves from oral arguments is not a wise move, so it's tough to say which way the Court will actually decide. But, as Sarah Jeong recently noted in a great writeup for The Verge, this case could have a widespread impact on issues related to online harassment and bullying online, no matter which way the ruling goes. That article compares some of Elonis' "lyrics" and actions with the threats often posted by internet trolls threatening to kill or rape people they disagree with -- and, further, notes that the increased discussion around these issues may play into how whatever test the Court settles on will be applied in practice. In other words, this case, no matter how it's decided, is likely to have a widespread impact.

13 983 bq7d (PDF)13 983 bq7d (Text)

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Filed Under: anthony ellis, anthony kennedy, free speech, harassment, john roberts, lyrics, ruth bader ginsburg, samuel alito, social media, supreme court, threatening speech, true threats

42 Comments

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johnjac (profile), 2 Dec 2014 @ 8:45am

I sure hope the court has the money to pay the fees for all the lyrics they are using.
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Chuck Upper, 2 Dec 2014 @ 8:52am

Ashamed
Sick and disgusting lyrics = sick and disgusting society.
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Anonymous Coward, 2 Dec 2014 @ 8:59am

In an alternate reality...
CHIEF JUSTICE ROBERTS: Do you argue, Mr Dreeben, that Eminem came up with those lyrics on stage at that concert? That they were never said in private, or written down anywhere that someone else might see?
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Anonymous Anonymous Coward, 2 Dec 2014 @ 9:03am

Re:
Um, those won't be a one time thing. They got reprinted here, and in how many other stories? Then, when the court publishes this proceeding, how many more copies? Of course, the 'rights holders' may wish to renegotiate the terms of the license now and again, so there will be increases down the road.

And how will those 'rights holders' track the usage, since these things usually go on a per use basis? Will they need to code up something that indexes the articles and compiles page views, along with a Nexus/Lexus algorithm that charges lawyers for looking at the cites?

Then how will they negotiate with libraries? Oh, and think about digital rights, and what if a movie is made?

Oh, and what about the argument that the "aspiring rap artist" has now published his copyrighted work and deserves a piece of the action?

I am most certain the 'rights holders' will be unique in both their interpretation of their rights as well as the methodology and actual calculation of expected remuneration due.
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Michael, 2 Dec 2014 @ 9:05am

There are some interesting arguments...

It wasn't as if he stated it to her in private

I suppose walking up to someone you are divorcing and breaking into a rap song could be pretty disconcerting, but it actually sounds like a much more healthy expression than many other options.

or on a Facebook page after having received a protection from abuse order.

Private == Bad, Public == Bad, Walk middle of road good? Wait, Miyagi said something different...

It wasn't as if he appropriated a style of rap that wasn't anything that he had been doing previously in the marriage and all of a sudden tried to express violent statements that way.

Sure, because going through a life-changing event that may cause some rather bitter feelings should never be handled by writing a song about it unlike anything you have written before.
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jackn, 2 Dec 2014 @ 9:16am

Re: Re:
This is fair use, so the rightsholders are uninvolved.
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jackn, 2 Dec 2014 @ 9:20am

Re: Ashamed
it all in your mind -> therefore, you are the sick and digusting one. qed
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Anonymous Coward, 2 Dec 2014 @ 9:21am

Re: Ashamed
No, that's just size of population + freedom of speech. Someone somewhere in a large enough populace who also has a protected right to do so will say things that you think are sick and disgusting. I agree that the lyrics are disturbing, but pretending that this is a result of society at large being sick and disturbing is something others will gladly dismiss as you just exercising your freedom of speech to say something they disagree with. Swift's A Model Proposal was pretty disgusting, but it was also satire. Should we just blanket ban everything that anyone finds disgusting and end up silencing all legitimate speech because there truly is no clear cut way to discern the difference without greater context?
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Anonymous Coward, 2 Dec 2014 @ 9:36am

Curious about the protection order
The thing that has my non-lawyer mind wondering about is the protection order.

I don't know the context under which a protection order is granted, but wouldn't that at least mean that there is evidence that an agressor has engaged in sustained acts of threats, intimidation, and/or violence against another person?

I'm conflicted, because I do think that expressions should be protected, but if there's truly some evidence that someone is going out their way to make sure that another human being lives in fear all of the time, shouldn't they lose the benefit of the doubt? Isn't the point of the protection order to get agressors to stop that kind of behavior?

I think there should be a difference between someone saying mean things on the internet, and someone who says mean things on the internet, but is legally identified as a person whose intent is more than simple trolling.
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Anonymous Coward, 2 Dec 2014 @ 9:53am

Re: Curious about the protection order
To my knowledge, the bar for a protection order is fairly low. I don't think there's any requirement for sustained acts of anything, just one alleged incident can be enough to get one.
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Anonymous Coward, 2 Dec 2014 @ 10:00am

Yosemite Sam has been around since 1943. He has been saying really bad things ever since: http://yosemitesamquotes.com/yosemite-sam-sayings/

they need to see how far back this goes. using intimidation is a part of life, not a criminal/civil offense.

hopefully, this will get some Drill Instructors from the military to calm down
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Chris Meadows (profile), 2 Dec 2014 @ 10:20am

We don't need to get into mindset
The way that the current test for threatening speech works is that 12 jurors perform the "reasonable person" test. Would they, as reasonable people, find the lyrics threatening in that context? Furthermore, they have to find them so unanimously; if there's any doubt, they have to acquit. This doesn't get into the mindset of the perpetrator or the victim. It doesn't require the court or the jury to try to be mind-readers, and doesn't give a free pass to anyone who makes a statement that a reasonable person would assume to be a credible threat if they say afterward, "Oh, I didn't mean it."

You can't tell me that Elonis wasn't trying to make a cute end-run around the law. "I want to throw a scare into this woman because she made me feel bad, but I want to leave myself an 'out' so I can claim I wasn't actually serious if I get arrested. I know, I'll make it look like a rap and claim I'm just 'expressing myself'!"

We really don't need to put juries in the position of trying to read minds. What we've got now is a great balance between free speech and rule of law. There's nothing magical about Facebook that means anything people post there can't be considered credibly threatening, whether it rhymes or not.
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AricTheRed (profile), 2 Dec 2014 @ 10:26am

What about bad satire?
If .gov get the supremes to get the bar set rollerskate-limbo low what does this expose the satirist to? Especially those ones that are really bad at it? Like Deputy Dickwad. I hear he jsut threatened the Rams for their hands-up bit...
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Chris Meadows (profile), 2 Dec 2014 @ 10:54am

Re:
It's not a matter of him handling it by writing a song about it. He could have written all the threatening songs he wanted about it, if he wrote them down in a little notebook and kept them to himself, for example.

It's a matter of him posting that song to his Facebook. The right to free speech is not a right to menace other people. Saying "My ex-wife is a (b-word)" is one thing. But you don't get to say you'd like to kill her in a way calculated to make her fearful that you really plan to, even if you do it in rhyme. (You can't tell me that guy wasn't trying to be clever and leave himself an "out" for in case he got arrested for threatening her. "No, no, look, it rhymes, see? It's just a rap! There's nothing threatening about a rap!")

The current state of the law is that we have twelve ordinary, average people on a jury, who look at the statements including their context, and judge from that whether they think they actually constitute a credible threat. And they have to be unanimous about it. That's not exactly a low bar. It's hard enough for a couple of people to agree about where to go to dinner, let alone twelve to agree on a decision with severe consequences for a man's life where there's any ambiguity about it.

This is the system we have now. It's a good system. I'd like to keep it. Free speech doesn't mean the right to say absolutely anything you want, including things harmful to other people.
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Mason Wheeler (profile), 2 Dec 2014 @ 10:57am

Re: Re: Re:
But that has to be decided in court. And since the Supreme Court is the defendant here, they would have to recuse themselves, so what happens when it gets appealed high enough? :P
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Anonymous Coward, 2 Dec 2014 @ 11:00am

Re: Re: Re: Re:
man, you're fucking dumb.
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Michael, 2 Dec 2014 @ 11:00am

Re: Re: Re:
Didn't Disney abolish fair use?
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Mason Wheeler (profile), 2 Dec 2014 @ 11:00am

Re: We don't need to get into mindset
Exactly. Especially considering the well-known history of gangsta rap and actual gangsters and gang violence, all too often involving actual murders, it seems to me that a reasonable juror should think that trying to hide behind "it was a rap" actually hurts his case rather than improving it!
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Anonymous Coward, 2 Dec 2014 @ 11:05am

Re: Re: Re:
and it also means that any quoting of these lyrics with reference to the court case is fair use... anywhere.

Court proceedings are sometimes used by third parties to affix fair use to content that was previously difficult to access/distribute. But if the court didn't have this exemption, chaos would reign.
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Michael, 2 Dec 2014 @ 11:17am

Re: Re:
You can't tell me that guy wasn't trying to be clever and leave himself an "out" for in case he got arrested for threatening her. "No, no, look, it rhymes, see? It's just a rap! There's nothing threatening about a rap!"

Ah yes, the old "I can read his mind, but you can't" argument. As a matter of fact, I probably have more evidence that he was not trying to have a clever out than you have that this was his purpose. To start with, he doesn't appear that clever. What evidence do you have?

Free speech doesn't mean the right to say absolutely anything you want, including things harmful to other people.

Free speech does mean you keep the limits on speech pretty high. It means allowing speech you do not like and speech that people find offensive. Threats probably should not be allowed, but where there is ambiguity, you have to err on the side of allowing speech or free speech will slowly get stifled more and more. Yes, that does mean that free speech will probably, some day, end up expanding to include threats - but if that prevents it from trampling art (and trust me, I'm not an Emenem fan), it is probably worth it.
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tqk (profile), 2 Dec 2014 @ 11:26am

Re: Re: Re: Re:
And since the Supreme Court is the defendant here, they would have to recuse themselves ...

Not true. The supremes regularly violate rules they expect others to follow. If they don't feel like recusing themselves, even when their spouse is involved, they don't.
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Mason Wheeler (profile), 2 Dec 2014 @ 11:33am

Re: Re: Re: Re: Re:
Wow. Two responses, both by people who have totally broken irony detectors...
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John Fenderson (profile), 2 Dec 2014 @ 11:52am

Re: We don't need to get into mindset
"You can't tell me that Elonis wasn't trying to make a cute end-run around the law. "I want to throw a scare into this woman because she made me feel bad, but I want to leave myself an 'out' so I can claim I wasn't actually serious if I get arrested. I know, I'll make it look like a rap and claim I'm just 'expressing myself'!""

And you can't tell me he was trying to make an end-around the law. Because neither of us know, we're only speculating.

Free speech is not, as you point out, an absolute right. However, the bar for prohibiting speech should be very, very high. If there's any doubt, then the speech should be allowed.
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tqk (profile), 2 Dec 2014 @ 11:54am

Re: Re: We don't need to get into mindset
Especially considering the well-known history of gangsta rap and actual gangsters and gang violence, all too often involving actual murders ...

Sure, and Christianity is a religion of peace, but look at what Dante (et al) did with it. He pretty much terrorized people into believing their immortal souls were at risk if they refused to conform.

The Beatles used violence in some of their stuff, as did Jimi Hendrix. Video games are violent. Lots of things portray violence.

Artistic expression is important, and mixing expression of violence up with real physical violence does society a disservice. Artistic expression is cathartic and a safe outlet for violent thoughts. I'd rather not lose the distinction between the two.

I too am not an M&M nor rap fan, fwiw. :-P
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Hot Corn (profile), 2 Dec 2014 @ 12:02pm

Next, why not criminalize satirical impersonation?
See the ongoing litigation involving New York's efforts to criminalize a batch of overly deadpan email parodies concerning an academic dispute:

http://raphaelgolbtrial.wordpress.com/

As the prosecutors put it, the defendant is a "menace" because he "knows how to twist language, stir up controversy." That should definitely be worth four years of jail in America.
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Quiet Lurcker, 2 Dec 2014 @ 12:05pm

Re: Re:
It's not a matter of him handling it by writing a song about it. He could have written all the threatening songs he wanted about it, if he wrote them down in a little notebook and kept them to himself, for example.

It's a matter of him posting that song to his Facebook.

By your implied logic, it would be a crime for him to write his rap lyrics on pieces of paper, and post those pieces of paper, say, on the bulletin board at a local store, or tacking them up to some fence or wall somewhere - or even writing them on the wall in a public bathroom.

Why does posting a threat - any threat - on Facebook make the threat any more real than writing the exact same threat in a notebook which no one else will ever see?
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Anonymous Coward, 2 Dec 2014 @ 12:59pm

Re: Re: Re: Re: Re: Re:
and one by someone who doesn't know what irony is.
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Anonymous Coward, 2 Dec 2014 @ 1:05pm

Re: Re: Re:
Because in order for a threat to be a threat, someone has to feel threatened (that is, they must fear for their safety).

If, while alone in my car on the highway, I mutter, "I'm going to pull up behind the next person who cuts me off, and run them off the road," then even though I've stated I'll do something bad to someone, it's not a threat because the person I am "threatening" could not possibly have perceived it.

If I post a message on Facebook saying "{Facebook friend's name here}, I'm going to pull up behind you on the highway, and then I'm going to run you off the road," then I'll have stated that I'll do exactly the same bad thing as before, but this time, I'll have designated a target, and since that target is my Facebook friend, they can see the post and, depending on how serious they think I am, they may actually fear for their safety.

I'll give an analogy: Writing down a violent fantasy in a notebook is like pointing a gun at a picture of someone's face. Writing it on Facebook is more like pointing the gun at that person's actual face. In the former case, the person cannot perceive any danger of being harmed, so they don't feel threatened. In the latter, the threat is visible to them, and they will, if they perceive it, probably regard this person as a danger to their continued safety.
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Chris Meadows (profile), 2 Dec 2014 @ 1:06pm

Re: Re: We don't need to get into mindset
True enough, but those twelve ordinary "reasonable" people on the jury unanimously determined that, given the specific circumstances, they found Elonis's postings to be a credible threat. And they were made fully aware of the context of the thing, including hearing Elonis's "it was just expressive rap lyrics" argument. If those twelve people weren't convinced, I'm not either.

Remember, the SCOTUS case isn't necessarily over whether he's guilty in that context, it's over whether the criteria used to find him guilty should be relaxed because he claims it was written for no other reason than to be expressive rap music, and expressive rap music should be protected.

I don't believe anyone who posts threatening statements that specifically refer to and terrorize another person should get a free pass just because he claims "artistic merit." There are certain standards we hold to in society, and those include not openly threatening other people. It doesn't matter if you're "serious" or not; the crime is inherent to the threat itself. Just like it's illegal to point a gun at someone, even if you don't plan to shoot them and even if the gun isn't even loaded.
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sigalrm (profile), 2 Dec 2014 @ 1:30pm

Re: In an alternate reality...
^^^ This.

But you also left out the question of whether or not it's been conclusively determined that no one exposed to the lyrics - publicly or privately - felt/feels/will feel threatened by the lyrics in question at any time.
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toyotabedzrock (profile), 2 Dec 2014 @ 2:13pm

If he didn't post this on her profile then he should not be found guilty.
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Anonymous Coward, 2 Dec 2014 @ 2:22pm

Re: Re:
He could have written all the threatening songs he wanted about it, if he wrote them down in a little notebook and kept them to himself, for example.

It's a matter of him posting that song to his Facebook.
Publishing unsettling song lyrics is what makes them a threat? I'd be a little more worried about the guy who keeps a notebook filled with expressions of rage and frustration hidden under a loose floorboard in his basement.
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John Fenderson (profile), 2 Dec 2014 @ 2:25pm

Re: Re: Re: We don't need to get into mindset
"It doesn't matter if you're "serious" or not; the crime is inherent to the threat itself."

I disagree -- it matters a great deal whether or not the threat was serious. Anyone should be able to speak, print, sing, or shout any threats that they like, so long as they aren't serious threats. There are a couple of reasons this should be (not all of the based on free speech).

However, what counts in court is not whether or not the person who made the threat meant it, nor whether the person who heard the threat took it seriously. What matters is whether or not a "reasonable person" who heard the speech in the context would think it's a credible threat.

I hate those "reasonable person" criteria because they're purely subjective, but I can't think of a better way to keep a balance.
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Anonymous Coward, 2 Dec 2014 @ 2:37pm

Re: Ashamed
I find censorship sick and disgusting. Therefore we should ban it.
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Anonymous Coward, 2 Dec 2014 @ 2:44pm

Re: Re: Re: Re:
As "Stand your ground" laws have proven feelings are a horrible basis for a law. It encourages being whatever state of mind gets the out. Be a paranoid afraid of everything and you can claim to "fear for your life"!
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Quiet Lurcker, 2 Dec 2014 @ 3:13pm

Re: Re: Re: Re:
Assume I have a notebook in which I jot down random thoughts. In that notebook I've jotted a note to myself that the sitting president has committed crimes worthy of the death penalty, along with supporting documents and logic. Assume further that the cops somehow get hold of it. They read it and choose not to prosecute for whatever reason.

Now assume that I have a facebook account, where I post exactly the same information. Law enforcement read it and and attempt to prosecute.

Explain why posting the information on facebook is a crime while posting it in my notebook is not.
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Anonymous Coward, 2 Dec 2014 @ 5:03pm

Re: Re: Re: Re: Re:
No, he's exactly right. All it takes is for some rightsholder to decide that they're above the law and willing to throw enough crap-covered money at the wall until their shit sticks.
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Anonymous Coward, 2 Dec 2014 @ 8:14pm

Re: Re: Re: Re: We don't need to get into mindset
how about violent lyrics like these?

"Early one mornin’ while makin’ the rounds
I took a shot of cocaine and shot my woman down
I went right home and I went to bed
I stuck that lovin’ forty-four beneath my head.

Got up next mornin’ and I grabbed that gun
Took a shot of cocaine and away I run
Made a good run but I run too slow
They overtook me down in Juarez Mexico.

Laid in the hot joint takin’ the pill
In walked a sheriff from Jericho Hill
He said Willy Lee your name is not Jack Brown
You’re the dirty hack that shot your woman down.

I said yes sir my name is Willie Lee
If you’ve got a warrant just read it to me
I shot her down cause she made me slow
I thought I was her daddy but she had five more.

When I was arrested I was dressed in black
They put me on a train and they took me back
I had no friends for to go my bail
They slapped my dried up carcass in the county jail."

Why do you think that Elonis should be in jail, but Johhny Cash should get a free pass to write violent lyrics?
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Anonymous Coward, 2 Dec 2014 @ 8:22pm

One again we've come full circle back to the old nursery rhyme.

"Stick and stones can break my bones, but words can never harm me."

Personally, I'd rather someone verbally threaten me, before actually assaulting me. At least then I've got some kind of heads-up, can prepare, and be on the lookout.

It's the ones that give no verbal warnings, and proceed directly to physical actions that are the most dangerous.

If the prosecution wins their case. Then aggressors will stop giving advanced warning in the form of words, and skip directly to physical action.

Doesn't seem like much of an improvement for the victim.
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jackn, 3 Dec 2014 @ 7:53am

Re: Re: Re: Re: Re: Re:
Yeah, like prenda or rocalabs? Nothing has stuck yet.

So, he (and you) are exactly wrong.
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John Fenderson (profile), 3 Dec 2014 @ 8:45am

Re: Re: Re: Re: Re: We don't need to get into mindset
"Why do you think that Elonis should be in jail, but Johhny Cash should get a free pass to write violent lyrics?"

I think you must be replying to the wrong comment, as I've asserted nothing close to "Elonis should be in jail". For the record, I have no real opinion on the matter as I don't have nearly enough information to form one -- but since on the face of it his speech does not appear to be a threat to me, my presumption is that he shouldn't be prosecuted for it.
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Anonymous Coward, 3 Dec 2014 @ 1:48pm

Re: Re: Re: Re: Re: Re: We don't need to get into mindset
Yes, that was meant for the comment above yours. Sorry
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