This last week has been the American Library Association’s Banned Books Week, which is billed as a celebration of the freedom to read. From a legal perspective Banned Books Week isn’t really about banned books, but requests to schools and libraries to remove books from reading lists and libraries. Captain Underpants, Harry Potter and The Hunger Games are in no danger of being rounded up by the FBI, but figure prominently as “banned” books. I’m not quite sure how “banned” has come to mean “ubiquitous.”
The real First Amendment battles over literature in the United States are now over 50 years old. Henry Miller, D.H. Lawrence, Allen Ginsburg and James Joyce not only added to the literary canon, but wrote the words that led the charge to allow First Amendment protection for artistic literary expression.
As the Supreme Court starts its 2014-15 session this month, the First Amendment is again on the docket, but instead of banning books, it is exploring the blurred lines between the published word online and messy personal lives.
I will go over the sad case of Anthony Douglas Elonis versus the United States of America, but first I want to tell our 11- (soon to be 12-) year-old son that when you are 13 and can finally get on FaceBook, it may not be the best place to try to jump-start your career as the next great white rapper. And a word of advice to everyone else — your exes probably lack a sense of humor.
After getting divorced and fired from his job at an amusement park, Anthony Elonis apparently decided that his best career choice was to become a famous rapper by getting arrested for writing rap lyrics on Facebook that were threatening to his ex-wife and everyone else. He changed his Facebook profile to reflect his new rapper name of “Tone Dougie.” He even worked his plan into some rap lyrics: “prison time will only add zeros to my settlement.”
Based on those lyrics and subsequent actions, the wisdom of his plan could be questioned. I’m a 50+ year-old lawyer in Utah and at 4 in the morning can come up with lyrics like “doin’ the time to increase my dimes” or “A.C.L. will sue U., for my bling I fling my life in the courthouse ring, doin’ my time at Sing Sing so I can bling-a-ling all the way *&%&$* home, little piggies.” Sorry about the cuss word, Mom, but you can’t be a rapper without a cuss word or two. But alas, I’m destined to make my living at the courthouse.
Back to Tone Dougie. His Facebook rap lyric career led to a five-count indictment for violating 18 U.S.C. §875(c), which makes it a federal crime to threaten someone online (or in lawyer-speak ‘transmitting in interstate or foreign commerce any communication containing a threat’). In his lyrics he managed to threaten an amusement park, his ex-wife, a kindergarten class, the police and an FBI agent. Many of the lyrics that led to his conviction were simply poor imitations of Eminem. The threat against the FBI agent was from lyrics he made up after an uneventful meeting with an FBI agent at his doorstep while barefoot in jeans and a T-shirt. Finally, the threat against his ex-wife was an outright plagiarism of a comedy sketch by the “Whitest Kids U’ Know,” complete with a link to the original video at the end of the Facebook post along with possibly the smartest thing Tone Dougie ever wrote, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”
Like any good "gangsta," Tone Dougie was convicted on four of the five counts (his threat to the amusement park was apparently not criminal) and got a prison sentence of 44 months, followed by three years of probation. His defense had been that he had the free speech to explore the dark side of his personality on Facebook through rap lyrics and he never had any actual intent to threaten or harm anyone. The trial court and the court of appeals said it didn’t matter what Tone Dougie thought, it only mattered what anyone else reading his posts thought, even if the people reading the posts had no clue about the incredibly stupid things people can post on Facebook or say in rap lyrics. The government’s position was that if it sounds like a threat, it is a threat, regardless of the Facebook context.
So now the Supreme Court is set to decide if the government has to prove you truly mean to threaten someone with your speech before they can lock you up. The lawyers will get to argue in front of the court on Dec. 1. The words that matter now are the words being spoken in the courtroom, not posted on Facebook. Tone Dougie was willing to go to jail for his free speech rights — are you?
E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or creditcorrection@gmail.com.
