Later this year the Supreme Court will hear an interesting case involving threats and rap lyrics. In Elonis v. United States, Elonis was convicted under a federal statute prohibiting threats to injure the person of another across state lines. Among other things Elonis posted this on his Facebook page about his ex-wife: 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. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. How does this get to the Supreme Court?
The jury was instructed to determine whether a reasonable person would find it to be a threat. The First Amendment claim is that the jury should have been instructed to find that Elonis intended to threaten his ex-wife, and these words were akin to rap lyrics – thus possibly filled with hyperbole. (One of the briefs has an extended lesson on the nature of rap lyrics – a lesson probably much needed by the opera buffs on the Court).
As the case has been reported (see Slate and SCOTUS), I too think the instructions are defective, but not for reasons just given. There is a third perspective beyond subjective intent and the perspective of a reasonable person. That is the perspective of the person allegedly threatened. For example, in this case the ex-wife was terrified, but so far as I can determine, the jury was not required to find this. In my view, the perspective of a reasonable person is insufficient. Suppose a reasonable person would find a threat, but none was intended and none received. This should not be regarded as criminal conduct.
But I maintain that any two of the three factors should give rise to criminal charges without the protection of the First Amendment. Suppose the two subjective factors exist, but not the objective factor. If the perpetrator intends to threaten and the victim perceives a threat, what difference does it make that a reasonable person would not recognize this to be a threat? Closer is the question of what to do when a threat is intended and a reasonable person would perceive it as a threat but the intended victim does not. I would regard this as an unprotected attempt to threaten.
This brings us to what in theory might be the case here. The speaker does not intend to threaten, but a reasonable person would recognize the words to threaten and the victim would recognize the words to be threatening. I suggest that a person who directs language reasonably thought to be a true threat and experienced as a true threat can reasonably be subject to criminal charges. There will be those who will wring their hands over the “chilling effect.” But some chilling effects are desirable and one of them is to avoid language which might reasonably be perceived as a true threat directed at a targeted person.
Interesting as this case may be, Elonis will lose in the end however the case is resolved by the Court. Even if thirty rap music experts take the stand in his favor, I find it wildly improbable that a jury will find he did not intend to threaten his wife: "I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." If that is not threatening, what would be? If the rap lyrics theory says this type of language directed at an individual does not show intent, so much the worse for the rap lyrics theory.