The man who claimed graphically violent messages posted on Facebook were rap lyrics and not direct threats against his ex-wife, teachers at their children’s school and former coworkers found himself back in court this week.
Anthony Elonis was sent back to the 3rd US Circuit Court of Appeals in Pennsylvania by the Supreme Court, which decided nearly a year ago that Elonis’ earlier conviction of making statements perceived by a jury of his peers to be threatening was a mistake. The Supreme Court ruled instead that prosecutors needed to show not that a “reasonable person” would perceive Elonis’ statements as threatening, but rather that the language posed a clear, direct and actionable threat against a specific person.
According to Peter Hall, a reporter with The Morning Call, “a federal appeals court must sort out what is evidence of a writer’s state of mind and whether Elonis’ conviction should be overturned.”
A three-judge panel heard arguments Monday from a prosecutor who said the “mistake,” as suggested by the Supreme Court, was not a big enough mix-up to warrant Elonis’ conviction being overturned in full.
Michael Levy, an assistant US Attorney, intends to prove that Elonis saw the reaction his violent posts were getting on Facebook and continued to post increasingly violent, disturbing messages he’d later claim were rap lyrics and, therefore, an art form protected by the First Amendment.
“The evidence is overwhelming that he knows these are going to be interpreted as threats,” Levy argued.
On the other hand, Abe Rein, Elonis’ attorney, “argued the charges against Elonis should be dismissed outright. He said it is likely the grand jury, which initially assessed the evidence against Elonis and recommended the charges, was given the same incorrect instructions,” Hall reports.
“The jury was instructed no less than seven times that what the defendant thought didn’t matter,” Rein said. If the court decides the original charges were correct, however, Elonis should stand trial again before a jury instructed to consider his state of mind at the time of the posts.
The arguments present on Monday focused on an alternative theory fronted last year by Supreme Court Justice Samuel Alito, who suggested in his concurring opinion that “proof of recklessness—a conscious disregard of the risk that someone might perceive the posts as threats—was enough to establish a violation of the law,” The Morning Call states. The high court ruled 8-1 that the original jury’s perception of the posts as threatening was not sufficient to result in Elonis’ conviction.
Rein, Elonis’ attorney, told the three-judge panel that the use of “recklessness” as a legal standard could provide “absurd” results.
“It’s not enough that some person out there might take it as a threat,” Rein said, noting that someone posting a photo of a pit bull on Facebook could be perceived as a threat, if the viewer had a fear of the dog breed.
On the other hand, prosecutor Levy argued that while a poke could be perceived as harmless, it could be a threat to someone with a blood or bleeding disorder. Levy went on to say Elonis suggested he’d take revenge against former coworkers at a water park after he’d been fired, going so far as to seek out some coworkers and find their responses to his Facebook posts.
Elonis “saved (the responses) on his hard drive, obviously pleased he was having this effect,” Levy said. “Every one of these communications is undeniably a threat to murder someone. There’s no question he knew the risk he was taking.”
The case is seen as a potentially landmark one in light of social media, the activity of “trolls” and cyber-bullying. It raises questions about whether rap lyrics can be considered art works and protected speech under the First Amendment; to what extent offensive or threatening language posted online is prosecutable; when language that could be perceived as threatening can be prosecuted and to what extent; even whether the use of certain emojis can be an indication of the seriousness of a post. (Elonis stated in a petition for certiorari that the use of “:-p” in his posts were indicative that he didn’t intend the posts to be read as actual threats against anyone, according to Lexology.com.)