Determining a true threat

Determining a true threat

by
Geoffrey Talmon
December 5, 2014
Geoffrey Talmon
December 5, 2014

On Monday the Supreme Court heard oral argument on a contentious First Amendment case, trying to determine whether online threats can be criminally prosecuted.

The case concerns a Pennsylvania man who took to the Internet to express his feelings about his domestic troubles via a rap persona called Tone Dougie.  The man’s violent rap lyrics were posted on Facebook and were largely directed at his estranged wife.  He was charged under a federal statute that makes it a crime to communicate “any threat to injure the person of another.”

While the Supreme Court has indicated that the First Amendment does not protect “true threats,” the court has not clearly indicated exactly what constitutes a true threat.

The situation is a complex one, especially since the alleged “threats” were frequently couched in terms of rap lyrics and contained disclaimers to that effect.  This point was acknowledged by Chief Justice Roberts, who cited some lyrics from the rapper Eminem that were similarly violent lyrics that were directed at his wife, and which came from an album that sold more than 5 million copies in the United States alone.

Chief Justice Roberts’ point was a legitimate one—whether a different standard should be applied to a recognized entertainer like Eminem than should be applied to other non-famous people.

The defense has argued that if the lyrics were not intended to be a threat and were simply artistic expression of the individual’s emotions or frustrations, then he should not be prosecuted regardless of how they were interpreted by the subject of those lyrics. Barring that, the defense has argued that the government should have to prove that the speaker knew that it would be a “virtual certainty” that someone would feel threatened.

On the flip side, Justice Alito noted that the defense’s approach “sounds like a road map for threatening a spouse and getting away with it. You put it in rhyme and you put some stuff about the Internet on it and you say, ‘I’m an aspiring rap artist.’ And so then you are free from prosecution.”

The government’s attorneys have argued that the courts should look to whether or not a “reasonable person” would interpret the lyrics to be a threat.

The lower court held that the prosecution should only have to prove that a reasonable person would expect that others would interpret the statements “as a serious expression of an intention to inflict bodily injury or take the life of an individual.” It is not clear precisely which way the Supreme Court will rule on the case, but the ramifications for online communications are potentially far-reaching.

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