Apply Elonis v. U.S. to a realistic scenario. Are memes artistic expression or true threats?
Andy Jackson is an 18-year-old junior at Bay State High School where he is on the championship basketball team and is gearing up to be scouted by colleges. He and Sarah Somers are debate partners who have gone to the state finals every year. Being on a winning debate team is important for Sarah’s scholarship chances. Due to the demands of his training schedule, Andy decides to break up the partnership, after which he says Sarah started rumors that he cheated on a test.
If true, Andy could lose opportunities for an athletic scholarship. Even rumors could hurt his chances. Andy becomes enraged at the possibility that he might lose an opportunity to play college basketball. He vents to his friends, who tell him to simmer down as they drive him to his job as an after-school DJ at the Boys & Girls Club where he volunteers.
Andy is a popular DJ and rapper at these and other events. He is known for lyrics that have clever, PG-rated messages with controversial double meanings. That night, he posts a meme of himself performing a parody of some well-known rap lyrics saying that “When players get slimed, they know how to even the score. When liars talk trash, I just show them the door.” Andy includes in the meme a skull emoji and a wink emoji superimposed on a basketball.
When Sarah sees the meme, she feels threatened in light of the fact that friends have told her how angry Andy is with her. She is concerned enough about the posts that she goes to the school police safety officer and asks how to get a restraining order against Andy. She also reports the post to the basketball coach and the assistant principal. Andy says Sarah is just playing dumb if she claims she doesn’t know what he means by “players know how to even the score.” It’s an obvious basketball reference.
Ultimately, Andy is charged with two counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to “transmit [ ] in interstate or foreign commerce any communication containing…any threat to injure the person of another.”
At today’s hearing in federal court, Sarah’s attorneys will argue that the lyrics reasonably could be understood to be referring to weaponizing a basketball to cause physical injury to Sarah. The skull emoji confirms that the lyrics are death threats. As such, the statements are true threats.
Andy’s attorneys will argue that Andy’s statements were not true threats, but artistic free speech protected by the Constitution.