PHILADELPHIA (CN) — Dissecting free-speech precedent, the Third Circuit upheld the conviction of man who posted rap lyrics on Facebook threatening to murder his wife, shoot up a school and bomb the police.
Defense attorney Ronald Levine noted in an interview that he is in talks with his client about what steps to take going forward.
"The ruling does not affect the legal precedent established by the Supreme Court," said Levine, of the law firm Post & Schell.
Looking at the case of Levine's client last year, the Supreme Court held 8-1 that the conviction of aspiring rapper Anthony Elonis hinged on whether the Pennsylvania man had intended for his posts to threaten or simply evoke fear.
Elonis tried to explain away his posts as snippets of rap lyrics he had been working on, under the moniker "Tone Dougie."
The Third Circuit looked at the case for the second time after the Supreme Court's reversal. Ruling from Philadelphia, the three-judge panel found that Elonis' conviction overcame the error in jury instructions.
"He knew that his use of a lyric form did not lessen the threatening nature of his posts," the Oct. 28 ruling says of Elonis, signed by U.S. Circuit Judge Lawrence Stengel. "His continued use of the form only heightens the likelihood he knew a reasonable person would interpret his post as a threat."
The posts first appeared fall 2010. Elonis and his wife were separated, and he had just lost his job at Dorney Park & Wildwater Kingdom.
Though Elonis had been an operations supervisor at the amusement park in Lehigh Valley, Pa., he was fired after posting a Halloween-themed photo to Facebook in which he held a prop knife to a female co-worker's neck. "I wish," said the caption to the Oct. 17 post.
"Someone once told me that I was a firecracker. Nah. I'm a nuclear bomb and Dorney Park just f***ed with the timer," Elonis wrote on Oct. 19, after he was fired.
Responding to reports by Dorney employees about the posts, park security staff referred the matter to the FBI.
Around the same time, Elonis was directing graphically violent Facebook posts at his estranged wife. The woman obtained a protection order against Elonis on Nov. 4, 2010.
"If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder," Elonis wrote.
In another post, Elonis riffed on a skit called "I want to kill the president," performed by comedian Trevor Moore for the IFC show, "The Whitest Kids U' Know."
Swapping the words "my wife" for "the president," Elonis included a link to Moore's original routine. "Art is about pushing limits," he wrote. "I'm willing to go to jail for my constitutional rights. Are you?"
Moore's routine toys with how saying, "I want to kill the president" is illegal, yet you can basically say the same thing if you are telling someone it's illegal, "as a public service announcement."
Moore showed a diagram of the White House, as well, saying it is illegal to say "the best place to fire a mortar launcher at the White House would be from the roof of the Rockefeller-Hewitt building," and explaining why.
The Elonis post meanwhile included an accurate diagram of his wife's house. Swapping those details for the White House, Elonis wrote: "I also found out that it's incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sun room ... Yet even more illegal to show an illustrated diagram."
The threat against the police appeared in Nov. 15, 2010, post about the protection-from-abuse order Elonis' wife had obtained against him.
"Fold up your PFA and put it in your pocket," he wrote. "Is it thick enough to stop a bullet? / Try to enforce an Order /That was improperly granted in the first place /Me thinks the judge needs an education on true threat jurisprudence ... And if worse comes to worse / I've got enough explosives to take care of the state police and Sheriff's Department."
The following day, Elonis posted: "That's it, I've had about enough 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 And hell hath no fury like a crazy man in a kindergarten class The only question is ... which one?"
FBI agents had been monitoring Elonis' posts for about a month at that point, and they dropped in on the man at his home on Nov. 30, 2010. Elonis posted about the visit later that day, rapping about the restraint it took not to slit the throat of the female FBI agent.
"Little did y'all know," he wrote, "I was strapped wit' a bomb / Why do you think it took me so long to get dressed with no shoes on?"
Charged with five counts for the threats of violence, Elonis claimed at trial that his lyrics were protected speech.
"These were — these were lyrics ... for entertainment purposes only," Elonis testified at trial.
"I made an on-line persona and I figured the worse I made myself seem, you know, I didn't care what people said about me," Elonis said.
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