Is Rapping on Facebook a Crime? The Unsympathetic Case of a Wanna-Be Eminem

The Short Version:

  1. The Supreme Court has decided to hear the appeal of Anthony Elonis, a Pennsylvania man sentenced to 44-months in prison for making threatening Facebook posts about his wife and others that he claims were merely rap lyrics inspired by Eminem.
  2. The basic legal question surrounding the case is whether a person can be found guilty of threatening another person if they did not intend to make that person feel threatened.
  3. However, this case also gives rise to compounding questions regarding how to treat statements made on social media and the use of rap lyrics by prosecutors nationwide.

Don’t play with da-da’s toy knife, honey, let go of it (no!)
And don’t be so upset, why you actin bashful?
Don’t you wanna help da-da build a sand castle? (yeah!)
Mama said she wants to show how far she can float
And don’t worry about that little boo-boo on her throat
It’s just a little scratch, it don’t hurt,
her was eatin dinner while you were sweepin and spilled ketchup on her shirt
Mama’s messy isn’t she?
We’ll let her wash off in the water and me and you can pway by ourselves, can’t we?”

The foregoing lyrics from Eminem’s song “Just the Two Of Us” depict Eminem talking to his daughter, Hailie, about why they’re going to throw her mother’s (dead) body in a lake.  These and other like lyrics have helped Eminem earn 13 Grammys, 11 VMAs, an Oscar, and over a hundred million records sold worldwide.

Contrast this with the following excerpts from Facebook posts made by Anthony Elonis (under the moniker of Tone Dougie), which he claims are rap lyrics inspired by Eminiem:

“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.” – Elonis on his estranged wife

“Someone once told me that I was a firecracker. Nah, I’m a nuclear bomb and Dorney Park just (messed around) with the timer. … y’all haven’t heard the last of Anthony Elonis.” – Elonis on his prior place of employment

“Little agent lady stood so close, took all the strength I had not to turn the (woman) ghost. Pull my knife, flick my wrist and slit her throat.” – Elonis on a FBI agent who visited his home

These and other like “lyrics” earned Elonis 1 restraining order, 3 visits from the FBI, and 44 months in jail for violating a federal statute that prohibits threatening others using the Internet.

201406-Facebook_Threats-Tone_Dougie-AKA-Anthony_Elonis

However, Elonis and his lawyers believe his conviction violates his First Amendment rights, and, in a move perhaps motivated by recent mass shootings that were preceded by online threats, the Supreme Court has decided to hear him out this upcoming fall. A case involving issues of free speech, artistic expression, and systematic minority oppression all wrapped within the context of online social media, it will not be surprising to see Elonis take center stage as the Supreme Court seeks to answer the following questions:

1. Can a person be imprisoned for threatening another person if they didn’t intend to make that person feel threatened?

Although the Supreme Court has long held that the First Amendment does not protect threatening statements that are “true threats,”5 they have given courts little guidance on how to decide when a threatening statement crosses the line from a constitutionally protected expression to a criminally punishable offense. As a result, courts have looked to different criteria to define where that line is drawn, and, in particular, they have split on whether they decide a statement is a “true threat” by looking at what a speaker intended or how a listener felt.

Most courts, including the Third Circuit Court of Appeals that upheld Elonis’s conviction, seem to side with the targets of threatening statements and deem that the line of constitutionally protected speech is crossed when a “reasonable person” would interpret the statement as threatening. Other courts, including the San Francisco-based Ninth Circuit Court of Appeals, seem to give speakers more leeway and find that the line is only crossed if the speaker intended the communication to be a threat.

It appears that history supports both positions. On the one hand, when the Supreme Court first announced, in Watts v. United States, that “true threats” were to be among one of the few categories of speech excluded from the First Amendment’s protection, they explained that its exclusion was meant to protect people from not only the actual violence threatened, but also “the fear of violence” and “the disruption that fear engenders.” Thus, finding that the listener’s understanding, and not the speaker’s intent, controls whether a statement is threatening would better serve the reason why true threats were excluded in the first place.

On the other hand, in the Supreme Court’s most recent application of the “true threat” doctrine in Virginia v. Black, it held that a law making burning crosses on another’s land evidence of an intent to threaten was unconstitutional in part because crosses could also be burned to convey a political or cultural message. Thus, finding that the speaker’s subjective intent controls whether a statement is threatening would accord with the Supreme Court’s recent recognition that the speaker’s intended meaning matters when determining whether a statement is a true threat.

Should the Supreme Court find that the speaker does in fact control whether a statement is threatening, then Elonis will likely be acquitted of his charges and released from prison because, as he argues, his use of rap lyrics and disclaimers6 demonstrate that he did not intend for his statements to be taken as true threats.

However, should the Supreme Court decide in favor of a standard that focuses on listeners, then they will need to address…

2. Should threatening statements made through social media be treated differently?

This is the question that has led many parties interested in “free speech on the internet” to support Elonis’s defense.

Although I commonly disagree with “internet exceptionalism,”7 there is sound reason to treat threatening statements made through social media differently from threatening statements made in-person or through other more traditional modes of communication. That is because a speaker who uses social media to transmit a message is less able to control the audience of that message, and, as supporters of Elonis point out, “a message intended for one or more specific listeners [may be] distributed among countless unintended recipients in the blink of an eye, often without the speaker’s knowledge or consent” and even when the “speaker specifically intends to exclude certain listeners.”

Thus, even if the Court decides that a true threat is determined by the objective standard of whether a reasonable person would find a speaker’s statements to be threatening, Elonis can argue that this standard should still not be applied to the statements made in his Facebook posts unless “reasonable persons” are limited to the intended listeners of his messages whom would have been more likely to understand that his Facebook posts were mere rap mimic and not statements of future intent.

The Supreme Court has never taken a “true threats” case involving statements made through social media, so I do not presume to know how they will decide. It seems like society has accepted that anyone can go viral without their choosing and people should be aware that they can be held socially accountable for their online actions. But will the Supreme Court accept that going viral also means that those who do not know that Elonis’s statements had rap inspiration can also hold him criminally responsible because those statements, taken out-of-context, made them feel threatened?

If the Supreme Court is willing to accept such a proposition, then they will have to answer…

3. Can rap lyrics form the basis of a conviction for threatening others?

Although overshadowed by attention towards the social media aspect of this case, the question that all musicians are (or should be) following can actually decide the case without the Supreme Court even having to clarify the standard for true threats.

That is because artistic expression, even when controversial, has been one of the basic forms of speech that the First Amendment has been held to protect. Yet, despite this, it seems that courts seem to protect some forms of art differently than others, and this is particularly true when it comes to rap music.

A genre of music that at times can romanticize violent life as a “gangsta” on the street, an increasing amount of prosecutors have treated rap lyrics as evidence of a past crime and not as constitutionally protected creative expression. 201406-vonteskinnerIn fact, the New Jersey Supreme Court is currently considering this issue in the case of Vonte Skinner, a man (pictured right) who was convicted for his alleged involvement in a 2005 shooting in part because prosecutors read the jury 13 pages of violent rap lyrics written by Skinner. In responding to a NJ Supreme Court Justice’s question of how these lyrics—some of which were written 5 years before Skinner’s alleged crime,8—were relevant evidence, prosecutors argued that the lyrics were evidence of “a continuing mindset” that “explain[s] why [Skinner] did what he did.

A dubious argument to be applied to artists performing a genre of music in which they may feel compelled to adopt a more violent persona to sell records, introducing this evidence is additionally problematic because it is highly prejudicial. Studies performed by psychologists have shown that a jury read violent lyrics written by a defendant is significantly more likely to believe that the defendant is capable of committing murder if they are told that the lyrics are from a rap song than a county or rock song.

Thus, where research conducted by professors at the University of Florida, University of Richmond, and UC Irvine “suggests that rap lyrics have been used against defendants in hundreds of cases across the country,” this question can be asked another way: should the writing of violent rap lyrics by amateur rappers on Facebook, Youtube, or Soundcloud itself be a crime?


  1. Defined as “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”

  2. For example, Elonis ended a post about killing an FBI agent by saying “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”

  3. Internet exceptionalism, in brief, is the idea that the Internet is such a novel medium of communication that it should not be subject to the same rules that governed the mediums of communication that came before it.

  4. Prosecutors also failed to tell the jury this fact.

  5. Defined as “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”

  6. For example, Elonis ended a post about killing an FBI agent by saying “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”

  7. Internet exceptionalism, in brief, is the idea that the Internet is such a novel medium of communication that it should not be subject to the same rules that governed the mediums of communication that came before it.

  8. Prosecutors also failed to tell the jury this fact.

AJ Afkari | techlawgic

A.J. Afkari is a Los Angeles attorney who specializes in legal matters related to the Internet, technology, and all things intertwined. He received his B.A. from UCLA, his J.D. from USC, and his A.J. from his mother.

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