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Froma Harrop - Does Supreme Court know what an emoticon is?

An aspiring rapper posts his lyrics on Facebook, suggesting a Halloween costume with his estranged wife's "head on a stick."
He goes on: "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, bitch, so I can..." and so on and so forth.
Anthony Elonis insists that he was merely engaging in artistic expression per his right to free speech. His wife disagreed. She saw his writings as a real threat of bodily harm, a crime not protected by the First Amendment.
Courts sided with the wife, and Anthony spent 44 months behind bars.
But the case won't hurry up and die. It's now before the U.S. Supreme Court, which will hear arguments in the fall.
A core issue will be Elonis' intent in writing those words. Did he mean it?
His defenders say that social media make the job of getting into anyone's head so much harder. And that's what makes this case interesting.
"In social media, you're deprived of interaction" with the author, Elonis' lawyer, John Elwood, told me. "People can't see your face, can't hear your voice."
The Facebook audience is crowded with strangers who don't know the writer. They're not well-equipped to judge whether he's the type to follow through on a threat or merely prancing on his stage. Miscommunication is easy in these circumstances.
But, you may say, his wife knows him and insists she's terrified. That brings up a long-running debate in such cases over whether to be a crime, a threat has to look real in unbiased eyes or simply strike fear in the target.
Elwood believes that the lower courts ignored the cues in Elonis' Facebook posts suggesting, "I don't mean anything by this."
For example, Elonis quoted and linked to a comedy group called The Whitest Kids U' Know. He also wrote in the middle of a post, "Me thinks the judge needs an education on true threat jurisprudence."
"These things indicate this is not intended to intimidate anybody," Elwood said, "but that he is blowing off steam."
Clearly, not everyone has caught the yuk-yuk-yuk disclaimers. And not everyone appreciates Elonis' brand of wit or, more to the point, identifies it as such.
Many of today's threat prosecutions are based on things said on social media platforms, a reason the Supreme Court has taken up the case. No easy task labeling impermissible speech on the Internet, where fantasies run amok alongside sober opinions, insanity, stupidity, irrationality and just plain bad writing.
Recent history shows not all of these online threats are idle. Elliot Rodger posted warnings on YouTube and online forums before stabbing and shooting several people to death in Santa Barbara, California. Jerad and Amanda Miller wrote of their "coming sacrifices" on Facebook before embarking on a murderous rampage in Las Vegas.
Some worry that the nine justices have not shown themselves to be keenly aware of communications technology. Questions such as these will arise:
Elonis didn't tag his wife on the Facebook threats. Does that mean that they weren't directly aimed at her?
He put an emoticon with a tongue sticking out at the end of the Halloween reference. Is this evidence that he was only kidding around?
Do the Supreme Court justices know what an emoticon is?
"Art is about pushing limits," Elonis has posted. But if a threat is written as rap lyrics — or in iambic pentameter, for that matter — does it get a pass as art?
Heaven knows we don't want to lose the sacred right to say moronic things online. And yet...

(A member of the Providence Journal editorial board, Froma Harrop writes a nationally syndicated column from that city. She has written for such diverse publications as The New York Times, Harper's Bazaar and Institutional Investor.)

 
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