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Supreme Court to Decide if Threats Made on Facebook in Rap Lyrics are Protected Speech Under the First Amendment

As Americans, we love to cite the First Amendment of our constitution any time someone doesn’t like what we say. The one that says that we can say whatever we want without worrying about prosecution. In reality, though, that’s not quite true. The First Amendment does indeed protect freedom of speech, but not all forms of speech are protected under the Constitution. For example, libel, incendiary speech (a.k.a. “fighting words”), and “true threats” are not protected under the Constitution. The problem can be discerning what makes a “true threat”, and the difficulty has multiplied with the use of social media. Without body language and tone of voice to indicate whether something is meant earnestly or in jest, people can find themselves in trouble for saying the wrong things. In a recent case, which will be heard by the Supreme Court in the fall, Anthony Elonis posted some rap lyrics to his Facebook page after his wife, Tara Elonis, left him, taking their two children with her. Like most rap, Elonis’s lyrics were crude and brutally violent, including a suggestion for his son to consider a Halloween costume that included Tara’s “head on a stick”. Anthony Elonis also reportedly fantasized about killing an F.B.I. agent and warned that “Hell hath no fury like a crazy man in a kindergarten class.” Tara testified that she understood the postings to be threats. She said that she felt like she was being stalked, and that she “felt extremely afraid for mine and my children’s and my family’s lives.” Anthony insists that he never intended to threaten his estranged wife or children. Instead, he says that he is an aspiring rapper, and so his lyrics convey nothing more than the violent imagery normally encountered in rap. Several of Anthony’s posts contain disclaimers that the rap lyrics were not meant to be “true threats”. One post ended with an emoticon of a face with a tongue sticking out, an indicator, said Elonis, that the post was meant in jest. Whether Elonis’s intentions when he made the threatening Facebook posts are relevant is still up for debate. So far, all of the lower courts have said that it is not the intention that matters, so long as a “reasonable person” could foresee that others would view the statements “as a serious expression of an intention to inflict bodily injury or take the life of an individual.” The lower courts therefore convicted Elonis of violating a federal law which prohibits “any threat to injure the person of another.” Elonis’s sentence is 44 months. When Elonis’s attorneys appealed to the Supreme Court, the Justice Department argued against the Supreme Court hearing the case, stating that the speaker’s intentions make no difference, so long as the comments create “fear and disruption”. The attorneys representing Elonis did not argue that their client’s comments did not have “undesirable effects”, but they said that the law should tolerate those effects, rather than “imprisoning a person for negligently misjudging how others would construe his words”.

Our Chicago libel attorneys concentrate in this area of the law. We have defended or prosecuted a number of defamation and libel cases including cases representing a high profile athlete against a well known radio shock jock, a consumer sued by a large car dealer in federal court for negative internet reviews and videos, one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired, a lawyer who was falsely accused of committing fraud with the false allegation published to the Dean of the University of Illinois School of Law where the lawyer attended law school and the President of the University of Illinois.

Our Chicago defamation lawyers defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Schaumburg, and Palatine, who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and off line media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.

Super Lawyers named Chicago and Oak Brook business trial attorneys Peter Lubin and Vincent DiTommaso Super Lawyers in the Categories of Class Action, Business Litigation and Consumer Rights Litigation. DiTommaso Lubin Austermuehle’s Oak Brook and Chicago business trial lawyers have over a quarter of century of experience in litigating complex class action, consumer rights and business and commercial litigation disputes. We handle emergency business law suits involving injunctions, and TROS, defamation, libel and covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud or defamatory attacks on their business and reputations.

 

 

DiTommaso Lubin Austermuehle’s Schaumburg and Barrington defamation and libel attorneys have more than two and half decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Naperville and Aurora, we serve clients throughout Illinois and the Midwest.

If you are the victim of a defamatory attack on your business or a consumer who has been sued to stop you from posting criticism of a business on line at Yelp or anywhere else, contact one of our Oak Brook and Chicago defamation lawyers for a free consultation at (877) 990-4990 or online by filling out our contact us form.