WASHINGTON — The high court will hear oral arguments Monday in the first examination of free speech rights and social media.
The outcome of the groundbreaking case, Elonis v. U.S., could decide the limits of what you post online.
Tara Elonis asked for a protective order from her soon-to-be ex-husband, Anthony.
Not long after, he posted a message on his Facebook page seemingly directed at Tara:
“Fold up your protection from abuse order and put it in your pocket. Is it thick enough to stop a bullet?”
It wasn’t the first time Elonis had posted harrowing messages on his Facebook page.
Before Tara asked for a protection from abuse order, Anthony posted, “There’s one way to love ya, a thousand ways to kill ya.”
In another post he said, “If I only knew what I know now I would have smothered your a** in a pillow. Dumped your body in the back seat. Dropped your body in toad creek and made it look like rape or murder.”
Elonis’ attorney, John Elwood, tells CNN the posts were “therapeutic” for his client similar to the way a rapper blows off steam in a rap song.
“There’s a reason why all these graphic songs were written when Eminem wrote these things and he hasn’t been prosecuted for a felony for writing these songs which are virtually indistinguishable about his ex-wife,” Elwood says.
At issue is whether Elonis should be prosecuted for what he claims was an artistic, cathartic expression about his ex-wife. A Pennsylvania jury found Elonis guilty and sentenced him to 44 months in prison on the premise of how a reasonable person targeted in the posts would perceive them.
Elonis’ attorney says what should matter is intent, not how the person on the other end would perceive the post.
“Comments can be misinterpreted,” Elwood says. “All of us have had experiences online with people that don’t know us, and they can’t see your gestures, they can’t hear your tone of voice and there are many times where people can misinterpret what you say.”
Solicitor General Donald Verrilli Jr. who is representing the government in the case disagrees, comparing Elonis’ statements to a bomb threat.
“A bomb threat that appears to be serious is equally harmful regardless of the speaker’s private state of mind,” Verrilli says. “[Elonis] was aware of the meaning and context of his Facebook posts, and those posts communicated a serious expression of an intent to do harm.”