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Unprecedented: Is A Threat Protected Speech?

It’s been difficult to interpret the First Amendment in the age of the internet and social media. But that’s the task the Supreme Court took on in Elonis v. United States.

In 2010, 27-year-old Anthony Douglas Elonis was charged with making unlawful threats via a post on Facebook that referenced his estranged wife. The alleged threats, however, were often communicated in the form of rap lyrics, with Elonis even adopting the Facebook alter ego “Tone Dougie.”

Once the case went to trial, Elonis and his lawyer insisted that he was utilizing the conventions of rap music. But the court didn’t buy his argument, and he was sentenced to almost four years in prison.

Four years ago, the Supreme Court overturned that conviction, arguing that prosecutors must do more than prove that reasonable people would view statements as threats. So what is a “true threat”? And what makes a person “reasonable”?

Produced by Orion Donovan-Smith.


Erik Nielson, Associate professor, University of Richmond; co-author, “Rap on Trial: Race, Lyrics, and Guilt in America”; @ErikNielson

Mary Anne Franks, Professor, University of Miami School of Law; president, Cyber Civil Rights Initiative; author, “The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech”; @ma_franks

For more, visit https://the1a.org.

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Copyright 2019 WAMU 88.5