For the second time, Anthony Elonis has been convicted of making threatening posts on Facebook.
A federal appeals court recently reinstated a ruling against Elonis, a Pennsylvania man who argued that the graphically violent posts he’d written on Facebook weren’t actually threats against his ex-wife and the staff at his children’s school but were, instead, rap lyrics. The case went to the Supreme Court in 2015 and could have potentially had long-lasting and wide-ranging ripple effects on the protections of the First Amendment in the social media age. The case also could have contributed to the discussion of whether rap lyrics should be considered artistic expression, a protection afforded other song lyrics or written works.
Instead, the court took an extremely narrow view of the case, sending it back to lower courts because jurors had not been told to consider whether Elonis intended to act upon the language and actions described in his online postings or knew that the scenarios he wrote about would be perceived as threatening.
On Oct. 28, the Third Circuit Court of Appeals in Philadelphia, in a 25-page opinion, reinstated Elonis’ conviction.
“The record contains overwhelming evidence demonstrating beyond a reasonable doubt that Elonis knew the threatening nature of his communications, and therefore would have been convicted absent this error,” the court ruled, according to Brent Kendall of the Wall Street Journal. As a result, the court determined no additional jury trial would be needed.
A summary of the ruling, published by Justia, a US law blog, notes that “the evidence overwhelmingly shows that Elonis posted the messages with either the purpose of threatening his ex-wife, or with knowledge that she would interpret the posts as threats. No rational juror could conclude otherwise.
The language Elonis used, under the nom de plume Tone Dougie, included such phrases as “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” That’s among the tamer examples.
But the appeals court, like the Supreme Court, declined to rule on the First Amendment issues.
The Supreme Court’s ruling prompted strong statements from advocacy groups on all sides of the issue: Organizations that support the victims of domestic violence were outraged, saying the ability to claim threatening language wasn’t intended to be read as actual threats further endangered the lives and well-being of people in abusive relationships who were later seriously injured or killed by a partner; other women said the ruling left them in danger of being harassed for actions as innocuous as speaking out online. One writer, on the other hand, argued that the court’s ruling reaffirmed that online threats can be sufficient reason for police action if the threats are deemed credible or actionable.
Ronald Levine, Elonis’ attorney and a partner with the firm Post & Schell PC, told Law360 that he and his team were disappointed with the ruling and “reviewing the opinion and consulting our client as to next steps.”
Eventually, for some reason, the question of whether rap lyrics are considered art, and whether language posted on Facebook or another social media platform can be directly considered threats that should result in immediate attention and action from law enforcement, will have to be considered by the Supreme Court. It’s just not happening with this case, at any court level.