Supreme Court says rap song threats of violence OK as artistic expression. You OK with that?

[astro]

The Supreme Court says rap lyrics are not actionable as a physical threat of violence, but are allowable artistic expression based on a determination of intent.

Are you OK with that? How seriously would you take a rap lyric threat directed to you personally?

Supreme Court Tosses Out Man’s Conviction For Making Threats On Facebook

The Supreme Court has reversed the conviction of a Pennsylvania man who said violent messages he posted on Facebook were therapeutic, not true threats. Anthony Elonis was arrested by the FBI, which had been monitoring his posts.

At issue is the standard by which a lower court viewed rap lyrics and messages from Elonis, who often posted graphically violent language along with disclaimers that he was merely asserting his First Amendment rights.

As we reported last year, Elonis began posting violent messages after his wife of seven years left him in 2010. The messages he posted to Facebook prompted Elonis’ now ex-wife to get a state protection order against him, and led his bosses to fire him from his job at an amusement park.

Elonis was charged with threatening his wife, a kindergarten class and law enforcement officers — including a female agent who visited his house to question him. All were subjects of rap-style lyrics he posted to Facebook, under the pseudonym Tone Dougie.

Here’s one example of Elonis’ Facebook postings, quoted by the Supreme Court on Monday:

“Fold up your [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order that was improperly granted in the first place
Me thinks the Judge needs an education on true threat jurisprudence
And prison time’ll add zeros to my settlement . . .
And if worse comes to worse
I’ve got enough explosives
to take care of the State Police and the Sheriff 's Department.”

[AnaMen]

Fine by me.

[Do_Not_Taunt]

Just so we’re clear here: the jury that convicted Elonis was given the instruction to convict if a reasonable person would see his postings as a threat. The SCOTUS said, no, that’s the wrong standard, try again. You have to take into account whether or not the defendant intended them to be a threat.

What the SCOTUS did not say anything about is whether or not Elonis intended his postings as a threat. The state is free to try him again if they can convict with the correct jury instructions, it’ll stand.

[Simplicio]

Did he tag the subjects of the rap on the Facebook posts? I think that would make a difference in how I viewed it, as trying to specifically draw the subjects attention to raps where he talks about murdering them seems more explicitly threatening than just posting them on his own page, even if that page is public.

I guess more or less for the reasons the SCOTUS decided. Sending a message specifically to a person seems to more or less show an intent to threaten them, while just posting them on your own page its at least somewhat plausible that you weren’t

[kopek]

I don’t have any issue with it. It’s not my style (even “The Pusher” was a little threatening for my taste way back when) but free speech and expression means free - not approved by me or anyone else. Just free.

[Miller]

@astro

The Supreme Court says rap lyrics are not actionable as a physical threat of violence, but are allowable artistic expression based on a determination of intent.

I’m very much not a lawyer, but from what I understand about this case, whether or not the threats were made in “rap” form was not part of the consideration. The threats could have been prose, free verse, interpretive dance, or spelled out in macrame - the question was, “Was it intended as a threat?”

[Balthisar]

I’m okay with the decision, even if it’s not exactly the same as the OP’s summary.

[suranyi]

@Do_Not_Taunt

Just so we’re clear here: the jury that convicted Elonis was given the instruction to convict if a reasonable person would see his postings as a threat. The SCOTUS said, no, that’s the wrong standard, try again. You have to take into account whether or not the defendant intended them to be a threat.

What the SCOTUS did not say anything about is whether or not Elonis intended his postings as a threat. The state is free to try him again if they can convict with the correct jury instructions, it’ll stand.

Right: The decision specifically says that free speech was not the issue here.

[Do_Not_Taunt]

@suranyi

Right: The decision specifically says that free speech was not the issue here.

Wait, you lost me there. I understood the reason that the jury instructions were incorrect to be that those instructions would violate 1st Amendment protections. Was the logic different?

[Tom_Tildrum]

@astro

The Supreme Court says rap lyrics are not actionable as a physical threat of violence, but are allowable artistic expression based on a determination of intent.

The lyrics can be actionable, upon a sufficient showing that they were intended as a threat. Finding them on your Facebook page may not in itself be enough indication of an intended threat, but if someone slides them under your back door late at night, that might be a different story.

[suranyi]

@Do_Not_Taunt

Wait, you lost me there. I understood the reason that the jury instructions were incorrect to be that those instructions would violate 1st Amendment protections. Was the logic different?

The decision is based on the idea that “mens rea” is required for this crime. The defendent must have intended the words to be threatening, just as you said.

The decision says, “Given our disposition, it is not necessary to consider any First Amendment issues.”

If the jury instructions had been correct, and the jury had found that the defendant had intended the words to be threatening, then we might see another case where First Amendment issues would be at stake. But that wasn’t decided here.

[gigi]

@Miller

I’m very much not a lawyer, but from what I understand about this case, whether or not the threats were made in “rap” form was not part of the consideration. The threats could have been prose, free verse, interpretive dance, or spelled out in macrame - the question was, “Was it intended as a threat?”

Right – the title of this thread is quite misleading.

[Do_Not_Taunt]

@suranyi

The decision is based on the idea that “mens rea” is required for this crime. The defendent must have intended the words to be threatening, just as you said.

The decision says, “Given our disposition, it is not necessary to consider any First Amendment issues.”

If the jury instructions had been correct, and the jury had found that the defendant had intended the words to be threatening, then we might see another case where First Amendment issues would be at stake. But that wasn’t decided here.

Interesting. Did the statute actually state the mens rea was a requirement for the crime? Or did the SCOTUS infer that from some other principle?

[Hello_Again]

@Do_Not_Taunt

Interesting. Did the statute actually state the mens rea was a requirement for the crime? Or did the SCOTUS infer that from some other principle?

The latter, and the principle is Due Process. Due Process requires that for most crimes for which imprisonment can be a punishment, the government must prove BOTH actus rea (punishable act) AND mens rea (punishable mental state when he did the act). If no mens rea is stated, there is still a mens rea requirement. Usually the defendent must be found at least reckless with respect to every element of the crime. Reckless would mean, even if he didn’t intend to threaten her, he recognized that his act might make her feel threatened, and did it anyway. (it is possible to codify a no-mens-rea law, which is called “strict liability”, but it must be stated as such, strict liability cannot be inferred.)

The jury instruction allowed the jury to rule without finding that he met the mens rea requirement inherently required by Due Process in a criminal conviction. No Due Process bad. Retrial.

[Do_Not_Taunt]

@Hello_Again

The latter, and the principle is Due Process. Due Process requires that for most crimes for which imprisonment can be a punishment, the government must prove BOTH actus rea (punishable act) AND mens rea (punishable mental state when he did the act). If no mens rea is stated, there is still a mens rea requirement. Usually the defendent must be found at least reckless with respect to every element of the crime. Reckless would mean, even if he didn’t intend to threaten her, he recognized that his act might make her feel threatened, and did it anyway. (it is possible to codify a no-mens-rea law, which is called “strict liability”, but it must be stated as such, strict liability cannot be inferred.)

The jury instruction allowed the jury to rule without finding that he met the mens rea requirement inherently required by Due Process in a criminal conviction. No Due Process bad. Retrial.

Allow me to restate, and let me know if I understand this right. Legislatures, whether state or federal, may specify if a crime is strict liability, or if mens rea is required. If neither is specified, mens rea is required by default. Proving mens rea can consist of either proving intent or gross negligence. Therefore, providing the jury the instruction to convict if a reasonable person would have felt threatened effectively removed one of the conditions needed to prove the crime happened. Ergo the instructions were wrong, and the verdict is invalid.

If this is all correct, and not controversial, it seems like the SCOTUS decision here should also be pretty non-controversial. What’s missing? What’s the counter-argument?

[Hello_Again]

Most of your summary is correct except for this:

@Do_Not_Taunt

Proving mens rea can consist of either proving intent or gross negligence.

There are more layers to mens rea than that. They vary by state but the “simplified” layers found in the Model Penal Code call them Purposefully, Knowingly, Recklessly, and Negligently; in a situation where no mens rea is stated, the defendent must be at least reckless.