The Notorious R.B.G. and Her Crew Take on Rap Music and Facebook

Can rappers threaten people in their lyrics and be protected by the First Amendment? What if the lyrics are posted on social media networks like Facebook? Well the Supreme Court recently heard oral arguments in a case that may get us closer to the answers. 

The case is Elonis v. United States.  

Anthony Elonis of Pennsylvania was once married with children and worked at a local theme park. In 2010, his wife left him, taking the children with her. Soon after, he was fired from his job for complaints of sexual harassment.

In response, he became a Facebook rapper, posting threatening lyrics about his former coworkers, his ex-wife, and law enforcement officers. He also threatened to cause harm at local elementary schools. He posted:

I have sinister plans for all my friends… I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts… I’ve got enough explosives to take care of the state police and the sheriff's department…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 ... The only question is ... which one? 

Pull my knife, flick my wrist, and slit her (female FBI agent) throat Leave her bleedin’ from her jugular in the arms of her partner.

His “lyrics,” some loosely based on lyrics by Eminem, led to a federal conviction for using the internet to threaten to injure the person of another.  He has appealed his conviction all the way to the highest court in the land. 

Ok lawyers, the issue is whether the First Amendment requires a conviction for threatening another person is based on proof of the defendant's subjective intent to threaten. See Virginia v. Black.  Or, is it sufficient to prove that a “reasonable person” would feel threatened by the statements in question. 

Elonis argued that a conviction must be based on a “subjective” or actual intent to threaten. In other words, the government would have to prove he truly intended to cause others to feel threatened. The government says it need only prove that “a reasonable person” would feel threatened by the posts. Because the federal circuits are split, the Supreme Court took up the case to clarify the standard.

The moral of the story is this. Regardless of how the Supreme Court rules, Elonis could face serious consequences for his Facebook posts. The First Amendment freedoms are NOT freedoms to say ANYTHING you want. There can be consequence. At, one of the first things we check are the social media posts of our clients and opponents. Flexing on Instagram, Shooting up Youtube, or Frontin on Facebook could have real world consequences. So don’t do it and don’t let your kids do it either.