Facebook, Free Speech,and Fighting Words; A Flap about Rap


Rap music has found its way to the hallowed halls of the United States Supreme Court. In a case recently argued, the issue is whether violent threats made on Facebook are protected by the Constitutional right of Free Speech or, in the alternative, subject the writer to criminal prosecution. Stated differently, when does profane and disturbing speech cross the line from protected criticism and expression into the realm of unprotected fighting words. That term refers to words likely to incite immediate violence, and is an exception to the right of free speech

The case, Eloinis v. United States, involves the online rants of Anthony Elonis, an aspiring rapper, whose wife left him and took their two children with her. His lyrics describe his “fantasized” violent revenge for his wife’s departure. 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, ***, so I can bust this nut all over your corpse from atop your shallow grave.”

When his sister-in-law described on Facebook shopping for Halloween costumes for his children, Elonis posted, “Tell my son he should dress up as matricide for Halloween. I don’t know what his costume would entail though. Maybe my ex-wife’s head on a stick?” When the posts prompted an investigation by a female FBI agent, Elonis posted about mutilating her body.  

Elonis was convicted of the federal crime of Interstate Communications. It outlaws transmissions across state lines of threats to injure another person. 18 USC Section 875(c). He was sentenced to 44 months in prison.

The prosecutor argues that Elonis’ lyrics are fighting words,. The prosecutor claims the effect of the words on Elonis’ wife is key - If she reasonably felt genuinely unsafe, the statements are not protected. Elonis argues that the case should instead turn on his intentions when he made the comments. He asserts that he never intended to act on his statements, but instead describes them as “fantasy rap” and “therapeutic”.

During oral argument, Chief Justice Roberts recited angry lyrics from Eminem’s song “97 Bonnie and Clyde” and inquired if they too should be the subject of prosecution. Those lyrics state, “You know, ‘Dada make a nice bed for mommy at the bottom of the like, . . . tie a rope around a rock . . .There goes mama splashing the water, no more fighting dad.”   The prosecutor distinguished the Eminem situation because the song was sung at concerts where people go to be entertained, not stand-alone threats. Thus, the target – Eminem’s wife, would not reasonably feel unsafe.

An amicus curiae brief (a formal written presentation of an argument submitted in a lawsuit by someone who is not a party to the litigation but has an interest in the legal issue) sought to instruct the judges about rap music. The submission, by a professor of Mass Communications at the University of Florida, advises, “Rap music resides squarely within a long tradition of African American storytelling and verbal competition, one that privileges exaggeration, metaphor, and, above all, wordplay. . . These factors make rap lyrics especially susceptible to misreading and misinterpretation.”

Confusion exists in the law identifying what constitutes fighting words. Case law is inconsistent. Elonis’ use of Facebook and the internet adds a contemporary and unresolved ripple , Guidance from the high court will be very welcomed. In the case of Anthony Elonis, the Supreme Court  has a near-perfect set of facts to add some precision to this area of law. Then again, the nature of free speech and fighting words may be such as to defy precision. Law is sometimes inexact. A decision in the case is expected sometime in early spring.

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Should the court rule that Elonis' lyrics are protected speech or fighting words?  Why?