After a sudden hospitalization last week, Justice Ginsburg – who I think has never missed a day of work – was back on the bench this morning to hear arguments.
Of this morning’s two cases the second, regarding a Pennsylvania man’s threatening rants on Facebook, drew the crowds. During the first I could see a few new members of the bar struggling to stay awake, although the Justices seemed to enjoy it.
The case, Elonis v. United States, was brought by Anthony Elonis who was convicted and served more than three years in prison for threatening his estranged wife with Facebook posts such as this one, “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.”
Restrictions on First Amendment speech are permitted if that speech constitutes a “true threat”, but that can mean many things. Elonis’ lawyer, John P. Elwood’s position that his client had no intent to scare his wife, much less follow through on his threats, that he was only venting in a rap style caused Justice Ginsburg to ask, “How does one prove what’s in somebody’s mind?”
When it came the government’s turn at the lectern, Chief Justice Roberts asked, “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?”
“I think you have a perfect freedom to engage in rap artistry,” replied Deputy Solicitor Dreeben. “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?”