TRANSCRIPT: A Thousand Ways to Kill You
He called it artistic expression. The government called it a threat. When does free speech go too far?
NINA TOTENBERG: I see a lot of cases involving somebody who commits a horrific crime against his wife and/or children. And there are lots of warning signs and these are the warning signs. Language like this is the warning sign.
How do you balance the right to free speech — in this very typical situation involving domestic, at least terror if not violence — and try to make sure there isn't a murder?
MIKE: Not all speech is constitutionally protected. Some speech — the kind that makes someone fear for their life — that can get you arrested. That can get you sent to prison.
ELONIS: "There's one way to love you, but 1,000 ways to kill you, and I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." It's distasteful. The more people have told me that I couldn't do it, the more that I wanted to do it. To push the buttons.
MATT: Today on the show: He called it artistic expression. The government called it a threat. When is speech a red flag? I’m Matthew Schwartz.
MIKE: I’m Mike Vuolo.
MATT: And this… is Unprecedented.
MATT: In 2001, Anthony Elonis met Tara on the internet. They were both teenagers, living in eastern Pennsylvania.
ELONIS: My name is Anthony Douglas Elonis. I met Tara actually online. I believe it was Geocities. She had a site called Moles Turn Me On. She has a mole right here. So that's how I found Tara. I remember the first time we met, we were going to the movies.
VUOLO: What movie did you see?
ELONIS: Crazy/Beautiful. Then we hung out at Walmart. That was our first just being together.
VUOLO: Do you remember what you thought when you first saw her?
ELONIS: I thought she was beautiful. I still remember the first time I laid eyes on her. It was just like radiating. She was sitting on the sidewalk. I believe it was instantaneous in terms of my feelings for her.
MIKE: The two were married in the fall of 2002 by a magistrate judge. They did not have a reception.
ELONIS: We did the justice of the peace thing. She was 16 — I was 19 — so I had to get her parents' permission. She was already pregnant with our son. I mean, I had felt guilty because, you know, every man wants to give his wife the wedding. There's some measure of guilt there. I did love her.
MATT: We really wanted to hear this story from Tara’s perspective too. We left voicemails and text messages, but we never heard back. What you’re hearing now, of course, is Anthony’s version.
ELONIS: We got married on Eminem's 30th birthday. October 17th, 2002.
She testified at court that I never listened to rap music, and that's a lie. My sister will tell you that one of my punishments growing up was to have my albums taken away.
VUOLO: What albums were they?
ELONIS: Big Pun, Ruff Ryders, obviously you have Eminem. My Name Is, you know, his first major release. I bought his album, I listened to him ever since. It's an artist that I related to. It's an artist that my ex-wife, in the past, has related to.
MIKE: Anthony and Tara were married for about seven years before things started falling apart. Anthony says he was spending too much time at work. Too much time partying. And, when they argued, he was cruel.
VUOLO: Do you feel like you were verbally abusive to her?
ELONIS: I think so, yes. When things don't go my way, I tend to not handle that very well. If we're having an argument, I tend to go for the jugular. I'll use — anything that I know that you feel weak about, I'll use that against you. So, I can understand why she left.
VUOLO: It sounds like when you're arguing with somebody, you try to wound them.
VUOLO: Do you remember the day in, I think it was 2010, when she told you that she was leaving and taking the kids?
ELONIS: I believe it was May 10th. I came home and she had loaded her belongings onto a trailer on her dad's truck. She told me that I had told her that she can dish it out but she can't take it, and that in actuality I'm the one that can dish it out and not take it. Talking about, just generally, verbal abuse.
VUOLO: So you’re now in this house that you lived in.
ELONIS: Apartment, yeah.
VUOLO: Apartment that you lived in with her and your kids, and suddenly you're there…
VUOLO: What was that like?
ELONIS: Yeah, that was probably the worst — just coming home from work, doing that shift, and, you know, the sound of the kids not being there. I mean that, that wore on me. And then, when I could no longer afford to live there — ’cuz I've always relied on two incomes — when I couldn't afford that, having to move back in with my parents, that was a shock after having had a family.
VUOLO: You keep alluding to your job. What were you doing at the time, tell me what you were doing, where you were working.
ELONIS: I worked seasonally for Dorney Park & Wildwater Kingdom. The year 2010, I was a department supervisor in the rides department. I worked up until October of 2010, and I was fired.
MATT: A coworker at the park had posed with Elonis during a Halloween event. He was dressed in costume and he held a toy knife to her throat. It was a joke. But he then had a falling out with the coworker and posted the photo online with the caption: “I wish.” The park ended his employment.
VUOLO: How low did you get, mentally?
ELONIS: Pretty low. Pretty low. I wasn't really sleeping. I hadn't slept for three days. I was definitely doing drugs. I was definitely drinking. Definitely wasn't sleeping. That doesn't mean that I didn't have a understanding of what I was doing.
VUOLO: You obviously weren't dealing with this in the best way at first.
VUOLO: You were using drugs and alcohol to, I guess, self-medicate, right?
VUOLO: But then, at some point, you took on this alter ego that you called…
ELONIS: Tone Dougie.
VUOLO: Tone Dougie. This was a sort of rap alter ego. And you started writing rap lyrics as Tone Dougie as, I suppose, what you thought was a healthier way to deal with the sadness and the pain of losing your family. Correct me if I'm wrong.
MATT: Tone Dougie never actually recorded anything. He never laid down tracks. He mostly just posted lyrics online, on his Facebook page. According to Anthony Elonis, Tone Dougie was therapeutic.
ELONIS: I mean, it had a lot of purposes. One of them, and I tried to explain this to the jury, but Stephen King had wrote an essay, a introductory foreword to the Bachman books, where he wrote as Richard Bachman. And he had described the benefit to having the ability to have this alter ego, that he could recognize that he had these elements of himself, and he had a way to channel that. I think it's very important to have a way for us to channel our creative energy, and that may not look the same to everyone.
VUOLO: One of the subjects that Tone Dougie rapped about was his — your — ex-wife, Tara. Do you remember, and can you recite, one of those raps?
ELONIS: "There's one way to love you, but 1,000 ways to kill you, and I’m not gonna rest …”
TOTENBERG: “... and I'm not gonna rest until your body is a mess … “
MIKE: Nina Totenberg covered this story for NPR.
TOTENBERG: “… soaked in blood and dying from all the little cuts. Hurry up and die, bitch."
ELONIS: "Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave." It's distasteful. And I'm not going to go into it, because I'm not — I’m not happy with the content. Because I do feel remorse, ’cuz I did love her.
TOTENBERG: And then his wife, Tara, went to court and they had a hearing and she got a protective order barring him from coming anywhere near her or their children. And just three days after the court hearing, he posted another Facebook message: "Did you know that it's illegal for me to say I want to kill my wife?"
MIKE: Elonis was actually riffing on a bit from a sketch comedy group called the Whitest Kids You Know:
TWKYK: Did you know that it’s illegal to say ‘I want to kill the president of the United States of America?’ It’s illegal, it’s a federal offense. It’s one of the only sentences that you’re not allowed to say. Now it was okay for me to say it right then because I was just telling you that it’s illegal to say…
MIKE: Elonis changed the words so that instead of the president, he was talking about his wife.
TOTENBERG: A week later he posted this about his wife: "Fold up your protective order and put it in your pocket. Is it thick enough to stop a bullet?" And the next day he said he was ready to, quote, "make a name" for himself with the most heinous elementary school shooting ever imagined.
ELONIS: They took my kids away because of stuff I put on Facebook. Like, I feel I have a right to say this. I feel that even though you disagree with me, you don’t — there is no heckler veto. You can't tell me not to say that. The more people told me that I couldn't do it, the more that I wanted to do it, to push the buttons. I remember waking up in the middle of the night. The school shooting one, that was just something I woke up, and was like, that was middle of the night.
SCHWARTZ: Do you remember why, like what was going on at the time?
ELONIS: You know, I grew up on a lot of macabre themes. You know, as awful as it is, it was something I wrote, that's violence against children, and it's something that's out there in the, in entertainment.
SCHWARTZ: So, when you wrote that …
ELONIS: It's something that should never happen.
SCHWARTZ: So, when you wrote that, you weren't planning on shooting up a school?
ELONIS: Umm… no. No.
SCHWARTZ: It was just…
SCHWARTZ: …like a violent fantasy just for—
ELONIS: It was adopting that psyche, and with the disclaimers that that's what I was doing.
TOTENBERG: That post got the attention of FBI agent Denise Stevens, who visited Elonis at home afterwards with her partner. And then he posted this message: "Little agent lady stood so close, took all the strength I had not to turn the bitch ghost.”
ELONIS: “Pull my knife, flick my wrist, and slit her throat. Leave her bleeding from her jugular in the arms of her partner." That would be Little Agent Lady.
VUOLO: Little Agent Lady being one of the FBI agents that knocked on your door.
ELONIS: Well, I mean, I don't want to say yes. I mean, it could have been any situation involving someone from law, well, agent, FBI, DEA, whatever. It was written out of the meeting, but that doesn't mean that it needs to be read as that specific agent. It doesn't need to be read like that.
MATT: But it was read like that. And it was one threat too many. Elonis was arrested and charged with violating Section 875(c) of the United States Criminal Code, which prohibits making "any communication containing a threat to injure another person."
MIKE: The government didn’t care that Elonis made some of these threats under his rap alter ego, Tone Dougie. The government also didn’t care that Elonis linked to the Wikipedia page on freedom of speech. They did care that he violated the law.
TOTENBERG: So, he was prosecuted for these threats and convicted by a jury. The judge instructed the jury that, to convict, it must find that the Facebook posts constituted "true threats," meaning that in context, a reasonable person would foresee that the statements would be interpreted as a serious expression of an intent to inflict bodily harm or bodily injury. And so he was convicted and sentenced to three-and-a-half years. And he said, "Look, I was just venting. There are disclaimers all over the page saying, ‘I'm just venting.’"
SCHWARTZ: In fact, he linked to the Wikipedia entry on free speech.
TOTENBERG: Yeah. And he said,"This is venting. Don't take this seriously. Therefore, it's not a violation of the law.” It's an expression of his free speech.
MIKE: Again, I tried to contact Anthony Elonis’s ex-wife Tara. We really wanted to know how all of this had affected her, and her children — how it may have changed them. No response. We confided to Nina that we were disappointed.
TOTENBERG: But you see, she just wants to be left alone. She's afraid of him. And, I am sure, she doesn't want to do anything that will provoke him. And he has lots of rationalizations and these are very post-hoc rationalizations. We'll never know whether he was using the First Amendment as a cover and what he really was trying to do was scare the bejesus out of her; whether he was doing both — both expressing himself and trying to scare the bejesus out of her. But whatever he says now is not a valid explanation, in my view.
ELWOOD: There was a lot to indicate that he just viewed himself as a First Amendment sort of activist.
MIKE: This is John Elwood. He was Anthony Elonis’s attorney through much of the case.
ELWOOD: You know, in the sort of days after he had lost his job and his wife, I think that he found some appeal in giving his life meaning by being sort of a First Amendment advocate. That's my armchair psychology.
ELONIS: I believe that there exists a line between protected and unprotected speech, and that we need citizens to get to that line to prevent the government from moving it. So, it was important for me to do that. Because they'll continue to move it until there's no room for any discourse. I remember watching The People vs. Larry Flynt and I thought that I could do that. I thought that I could do that. So, I had researched “true threats.” I knew there was a potential for a Supreme Court case, and I latched onto it.
MATT: Coming up, Anthony Elonis spent three-and-a-half years in prison for his Facebook posts. Did he get what he deserved?
MIKE: Or did he get locked up for exercising his First Amendment right to vent?
MATT: Stick around.
Hey there listeners. This is Matt Schwartz, creator and co-host of Unprecedented here to let you know that while this is the final episode of Unprecedented, I’m excited to tell you that the legal stories will continue! I am joining the audio team at Bloomberg Industry to produce and anchor their flagship narrative journalism podcast, [Un]Common Law, which combines storytelling with legal issues and public policy. Sound familiar? If you’ve enjoyed Unprecedented, I encourage you to subscribe to [Un]Common Law wherever you get your podcasts. Thank you for your support — and now, back to the show.
SCHWARTZ: Did you intend to threaten your wife?
SCHWARTZ: Did you know that by posting those lyrics she would feel threatened?
ELONIS: I believed in the possibility that she could take that as a threat. Then, the question becomes, "Well, how much fear is necessary to remove speech from the protection of the First Amendment?" Anybody can say, "I'm afraid of the consequences of this speech." Anybody can say that. But how much fear is necessary to remove speech from the protection of the First Amendment?
SCHWARTZ: Well, how would you answer that question yourself?
ELONIS: Umm, it's got to be a lot of fear. I wasn't following her. I wasn't going to her place of employment. She had no contact with me. The only thing she knew of me is what her friends were telling her. She wasn't my friend on Facebook. So there were a lot of obstacles for her eyeballs to come in contact with the content on my Facebook.
SCHWARTZ: Did you make it public?
ELONIS: It was public, yes.
SCHWARTZ: So you knew that she could see it.
ELONIS: Uh, I knew that… I knew that it being... I knew that... (giggles). So yes, I — I — yes, there is the possibility that she would have seen it. And as it turns out, she did.
MIKE: It’s important to get inside Anthony Elonis’s head. Because what he was thinking when he wrote those Facebook posts speaks directly to his motivation.
MATT: Remember, a threat doesn’t get First Amendment protection, if it’s deemed a “true threat.”
MIKE: True threat — not just somebody blowing off steam. But how do we know if something is a true threat?
MATT: You look to the mindset of the person who made the threat. Did Anthony want Tara to fear that he was gonna do the things he said he would do in those rap lyrics?
MIKE: So what you’re saying is it’s not even really about whether Anthony intended to carry out those threats; it’s about whether Anthony wanted Tara to believe that he might carry out those threats.
MIKE: But, in order for us to know what Anthony intended, we would have to be able to read his mind!
MATT: Yeah, and that’s basically what juries are expected to do. They have to answer the question: Did Elonis really mean to threaten his wife, or was he just venting? And again, even if he didn’t intend to carry out the threat, did he intend for Tara to feel threatened? Because that’s a true threat. And that’s not protected.
SCHWARTZ: Can I ask you this? Did you hope she would see it?
ELONIS: I had hoped that she would see the pain that that I was going through, and to be honest with you I didn’t, you know I probably didn't channel that in the best way. But I mean there was a little hope that she would see it, yeah.
SCHWARTZ: So you hoped she might see it. Did you — did you hope that she would feel threatened?
MIKE: Matt, I’m gonna interrupt here, because I feel like we need to mention that Tara had taken out a restraining order against Anthony. They call it a Protection From Abuse order, a PFA. And he later wrote on Facebook: “Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet?” Which makes one wonder: How could he write this stuff hoping she would see it, and not expect her to feel threatened?
ELONIS: I mean, so without speaking of the positives and the negatives of a PFA, it is just a document. It is not going to protect you from someone that wishes to do you harm.
SCHWARTZ: So, when you wrote something like, "A PFA isn't gonna stop a bullet." You must have known that that was going to make her feel threatened if she saw it.
ELONIS: I mean, I don't think I would, I don’t — first of all, I didn't know if she was gonna see it. That was always…
SCHWARTZ: You hoped she would.
ELONIS: There was a small measure of hope that she would see my Facebook.
SCHWARTZ: And was that like a plea for attention? Why did you want her to see it?
ELONIS: Well, I think I wanted her to see that I could do this.
SCHWARTZ: Do what?
ELONIS: Write what I wanted to write, and that she wasn't gonna stop me, and that the court wasn't gonna stop me, and I was gonna continue to do it. I drew the line in the sand, and I wasn't gonna back down.
CHIEF JUSTICE JOHN ROBERTS: We’ll hear argument next this morning in Case 13983, Elonis v. United States. Mr. Elwood.
ELWOOD: Mr. Chief Justice and may it please the court. The First Amendment permits restrictions…
SCHWARTZ: So you were arguing that this is artistic expression?
ELWOOD: Yes, it was worth protecting, exactly, because I definitely got questions at argument about, "Why should we try to protect this speech? It's very low-value speech."
MIKE: Elonis’s attorney, John Elwood.
ELWOOD: "You know, it's not really communicating any great, elevated idea," and I tried to talk about how these things are worth expressing artistically because it communicates a lot of very intense emotions. They may not be pretty emotions, but they are cathartic sometimes for people who do them. I mean, like the best example is Eminem, and anybody who's ever gone through a bad divorce might enjoy listening to Eminem.
🎵 EMINEM: Oh, where's Mama? She's takin' a little nap in the trunk. Oh, that smell? Dada must've runned over a skunk. 🎵
He's written some songs that are just absolutely blistering about essentially drowning his ex-wife, throwing her in the water. And one of the things I found kind of most professionally satisfying is when you can get, as happened in the argument, you can get Chief Justice John Roberts quoting Eminem to your opposing counsel and saying, "Well, couldn't Eminem be prosecuted for this?"
ROBERTS: Uh, you know: “Da-da make a nice bed for mommy at the bottom of the lake. Tie a rope around a rock.” This is during the context of a domestic dispute, between a husband and wife.
MIKE: This is Chief Justice John Roberts questioning the attorney for the government, Michael Dreeben.
ROBERTS: “There goes mama splashing in the water, no more fighting with dad.” You know, all that stuff.
🎵 EMINEM: There goes Mama, spashin' in the water
No more fightin' with Dad, no more restraining order
No more step-dada, no more new brother
Blow her kisses bye-bye, tell Mama you love her (“Mommy!”) 🎵
ROBERTS: Could that be prosecuted?
DREEBEN: No. Because if you look at the context of these statements…
ROBERTS: Because Eminem said it instead of somebody else?
DREEBEN: Because Eminem said it at a concert where people are going to be entertained. This is in a critical part of the context. It wasn't as if he stated it to her in private or on a Facebook page. And that is a relevant…
ROBERTS: So how do you start out if you want to be a rap artist? Your first communication, you can’t say, “I’m an artist.” Right?
DREEBEN: I think that you have perfect freedom to engage in rap artistry. What you don't have perfect freedom to do is to make statements that are like the ones in this case where, after the individual receives a Protection From Abuse order from a court — which was based on Facebook posts that his wife took as threatening — he comes out with a post and says: Fold up that PFA and put it in your pocket, will it stop a bullet? He knows that his wife is reading these posts. He knows that his posts, despite the fact that they're in the guise of rap music, have instilled fear in her, and he goes out and he ramps up and escalates the threatening character of the statements.
SCHWARTZ: So, John, do you think that if Eminem had written some of those lyrics and instead of recording it — if Facebook had been around back then — just posted it, do you think he might've faced the same sort of trouble?
ELWOOD: I think definitely so. If we're talking about Eminem before he's broken through —
SCHWARTZ: Marshall Mathers.
ELWOOD: If he was just Marshall Mathers from Detroit, from 8 Mile, and he was just posting it on Facebook before anyone had ever heard of him, I think he could definitely have been prosecuted. And that's kind of the argument that I made, and
I vaguely recall it's something that Chief Justice John Roberts seemed sympathetic to: The idea that Marshall Mathers, before he'd broken through, could have been prosecuted just like Tone Dougie was.
VUOLO: Yeah, and how do you become Eminem if you're not first Marshall Mathers writing those lyrics?
ELWOOD: Right, exactly, although I try to be scrupulously fair and balanced: It helps to record it first before you go posting it on Facebook.
JUSTICE SAMUEL ALITO: This is one of the communications in this case for which your, your client was convicted:
MATT: This is Justice Samuel Alito questioning Elonis’s attorney John Elwood.
ALITO: “That's it. I've had about enough. I'm checking out and making a name for myself. Enough elementary schools in a ten-mile radius to initiate the most heinous school shooting ever imagined and hell hath no fury like a crazy man in a kindergarten class. The only question is which one.”
Now, suppose that this was altered a little bit, so at the bottom he puts: “Just kidding, just kidding, laughing out loud.” And at the top he puts: “Tone Dougie, aspiring rap artist.” Okay? What's a jury to do with that under your theory? That you have to get into the mind of this obsessed, somewhat disturbed individual to figure out whether he really knew that this would cause a panic on the part of the school officials and parents who found out about this?
ALITO: Yes, that's the answer?
ELWOOD: Yes, exactly. And it's the same thing that juries do all the time.
ALITO: You think that’s what Congress intended?
MIKE: So, that free verse poem about a school shooting — I’m not even gonna call it a rap, because it really wasn’t — that, in the context of a Facebook post, stripped of any obvious artistic intent, it reads like a threat! And it should be taken seriously. I would want law enforcement all over Elonis if he lived near my son’s elementary school.
MATT: Well yeah, reading violent rap lyrics aloud in a courtroom, without a beat, would make anyone sound disturbed. But I want to try something. I asked Ben, our sound engineer, to take those lyrics, as read by Justice Alito, and present them as they might sound at an actual concert.
🎵 RAP VERSION OF ALITO 🎵
MATT: Well, whaddya think?
MIKE: I mean it’s better, I guess? It sounds closer to art than it did before, but, look, I’ve listened to enough rap to qualify as discerning, and, with or without a beat, that’s just not good. In fact, it’s bad. And I’ve never been a big Eminem fan, but he was, he was clearly a skilled lyricist on some of his earlier albums — The Slim Shady LP, the Marshall Mathers LP. If you wanna be Eminem, then make a demo. Don’t post it on your Facebook, especially when you’re emotionally distraught after losing custody of your kids.
SCHWARTZ: How do you feel knowing that you got arrested for your poetry, your rap lyrics, while famous rappers like Eminem write the same sorts of things and make millions of dollars?
ELONIS: I don't want to play the victim; It was excruciating. I remember shortly into my imprisonment, I remember Foster the People, the Pumped Up Kicks. That was on the radio every hour at least.
SCHWARTZ: How does that one go?
ELONIS: What was it? "All the other kids with the pumped up kicks better run, better run, faster than my bullet.” Is that how it goes, I believe? But it's basically a song, popular song, about a school shooting. So I mean, to me, that was torturous.
🎵 FOSTER THE PEOPLE:
All the other kids with the pumped up kicks
You better run, better run, outrun my gun
All the other kids with the pumped up kicks
You better run, better run faster than my bullet 🎵
SCHWARTZ: Where were you when you heard those lyrics?
ELONIS: I was in the federal detention center in Philly at the time that that song was pretty popular, and like I said, on the radio.
SCHWARTZ: Like, in the prison?
ELONIS: Yeah, I was in — oh, we could purchase on commissary small little radios for us to listen to — AM, FM. I mean, the argument was always that, "Well, you're not them." So, I like Roberts' line of thinking is, "Well, how do you become them?" And I don't think that any American should be denied the opportunity to follow their dreams, whatever that may be.
SCHWARTZ: Did you want to be a rapper?
ELONIS: I think I wanted a Supreme Court case more than I wanted to be a rapper, to be honest with you.
MATT: And as we mentioned, along with his violent rap lyrics, Anthony Elonis was also posting disclaimer after disclaimer. Here’s his attorney, John Elwood, talking to Justice Alito, who seemed less sympathetic than Justice Roberts to the Eminem Argument.
ELWOOD: If you could look at page 344, this is the standard disclaimer which appeared on his web page which says, "All content posted to this is strictly for entertainment purposes only." And, again, you can imagine a situation where somebody says, I'm posting this for entertainment purposes only. You can see the number of other things he posts in the style of rap.
ALITO: Well, this sounds like a roadmap for threatening a spouse and getting away with it. So you, 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.
ELWOOD: And the jury, the prosecution would be perfectly free to point …
TOTENBERG: Yeah. And he said, "This is venting. Don't take this seriously." And he said, "In context, therefore it's not a violation of the law; it's an expression of his free speech."
VUOLO: And one could say, and it sounds somewhat shocking to put it so starkly, but one could say that he went to jail for three-and-a-half years for speech. He didn't do any of the things he said he wanted to do or that this character Tone Dougie that he wrote as wanted to do.
SCHWARTZ: Well, he told us he didn't intend to do it. He said…
TOTENBERG: Guys, I have to tell you that I cover the Supreme Court. And I see a lot of cases involving somebody who commits a horrific crime against his wife and/or children. And there are lots of warning signs and these are the warning signs. Language like this is the warning sign. You see it as a red flag over and over and over again. Hopefully, he doesn't kill anybody, but how do you balance the right to free speech — in this very typical situation involving domestic, at least terror if not violence— and try to make sure that there isn't a murder?
And so the question is: What can you do to prevent some true act of violence? He never got to that point. Maybe he's better now. Maybe he’s calmed down some. Maybe he's had enough chance to vent that it eased him. Half the capital cases that come in front of the Supreme Court involve people who do things like this because they are in those circumstances, in domestic circumstances: They kill their girlfriend, they kill their wife, they kill somebody who they think their wife has flirted with. They talk like this a lot beforehand. And often, usually, the police feel they can't do anything about it. Well, here he did it in writing, and repeatedly, and after a court order. And if I were a cop, I would lock him up.
VUOLO: So you're saying if these aren't warning signs then, then what are really?
TOTENBERG: Yeah, if these aren't warning signs, what is a warning sign?
MATT: When the Supreme Court took this case, they were thinking about the First Amendment. About whether the First Amendment protects speech that may seem threatening. About whether the First Amendment protects Anthony Elonis. Here’s where the case takes a bit of a detour. Justice Steven Breyer:
BREYER: Forget the First Amendment issue here. Take it to the side. Forget it. It has to do with the state of mind. So, you have to know that you are transmitting a true threat. And if you don't know that, you’re home free.
MATT: We said at the beginning that it’s important to get into the mind of Anthony Elonis.
MIKE: Right, because we need to know if Anthony wanted Tara to be afraid. Because that would make his words a true threat — and therefore a crime.
MATT: But the jury wasn’t told to figure out what was going on in Anthony Elonis’s mind. The jury was asked, would a “reasonable person” believe that those Facebook posts would be perceived as a threat?
MIKE: So let’s say I’m the theoretical reasonable person. The jury is wondering if I, looking at those Facebook posts, would think that Tara would take them as a threat?
MATT: Yeah. That’s what the jury was instructed to ponder. But that’s not what juries are supposed to ponder in a criminal case. They’re not supposed to get into the mind of a “reasonable person”; they’re supposed to get in the mind of the person charged with the crime.
MIKE: So did Anthony Elonis himself intend his statements to be interpreted as a threat?
MATT: Exactly! So, the Supreme Court ruled in favor of Anthony Elonis. Because Elonis was convicted for what a reasonable person might have thought, and not for what he himself thought.
LESTER HOLT: When do threats posted online go too far and actually amount to a crime? We get the breakdown from our justice correspondent Pete Williams.
WILLIAMS: In a decision applying to the 200 million Americans who use social media, the Court said that just because a message causes genuine fear, that doesn’t make it illegal. The Court overturned…
MATT: Here’s Chief Justice John Roberts delivering the opinion.
ROBERTS: There is a general principle in our system of federal criminal law that serious criminal punishment should only be imposed for conscious wrongdoing. Elonis says the jury should have been required to find that he intended to threaten someone before convicting him. We agree. That conviction was based solely on whether a reasonable person would regard Elonis' communications as threats, regardless of what Elonis thought.
This is not a case of ignorance of the law being an excuse. It does not matter whether Elonis knew it was against the law to send threats. The question is whether he meant to send threats in the first place. The jury was not required to find that he did, and so Elonis' conviction cannot stand.
MATT: How exactly does the First Amendment come into play? The Court didn’t answer that. They simply said that what Anthony Elonis was thinking matters. And because the jury didn’t consider that, his conviction cannot stand.
MIKE: Elonis wanted a Supreme Court case. He got what he wanted. But he spent three-and-a-half years in prison and the question still lingers: Does the First Amendment protect speech that is possibly artistic, maybe cathartic and seemingly threatening?
MATT: We called Elonis back to ask if he would do this all again. Would he push the boundaries of speech, in order to get a Supreme Court case, even one that ends with so much uncertainty as this one? He was driving, so he pulled over and spoke to us from his car.
ELONIS: I wouldn't say that those days are behind me. I still like to push the envelope. I still like to say things I shouldn't say just to say them most of the time. You know, I go through this process in my head where I'll think of something outrageous and then I'll say, "Well, you know, I, you really shouldn't say that." But then there's a voice that says, "Well, you know what? Fuck it. Just say it anyway."
Just because you can say it doesn't mean you should say it. Well, someone has to say the things that you shouldn't say before those things become the things that you can't say. But it costs a lot: loss of family, loss of friends. It's one of the hardest things that you can possibly do, is to stand up for free speech. I don't know the exact quote, but there's a Supreme Court case where they said: Often the people that are in these cases, these First Amendment cases, aren't very likable.
VUOLO: Do you think that you're likable?
ELONIS: Um, a lot of times the role that I play is not very likable. People shouldn't like the things that I say. I don't even like the things that I say half the time. But generally if you get to know me, I would hope that you would have a not too negative opinion of me.
MIKE: This case ended with confusion and frustration on both sides. But that’s not a bad thing. I hope that we will still be debating — a hundred years from now — all of the questions that have come up this season. Because uncertainty is the engine of democracy. And I know that sounds like something cribbed from Poor Richard’s Almanack but it’s true. The messiness of legal precedent and legal limbo and gray areas, that’s what keeps us all arguing about how to better organize our society.
MATT: We set out this season to tell the stories of ordinary Americans who helped ensure rights for all of us. The accidental guardians of our freedoms. As Anthony Elonis himself demonstrates, they’re not all saints. But they have all helped us as we try to figure out — you, me, the Supreme Court justices — as we all try to figure out what it means to live under the Constitution. It’s messy, and it’s uncertain, and it’s constantly evolving. In other words, it’s the story of America.
MATT: Unprecedented was produced by me, Matthew Schwartz, and my co-host, Mike Vuolo.
MIKE: If you love the show, rate and review Unprecedented on your podcast app.
MATT: Thanks again for your support this season. And remember, if you love Unprecedented, you’ll love [Un]CommonLaw. See you there!