The Supreme Court is deciding whether to "Like" a defense argument in a case involving an Allentown man who posted violent threats against his estranged wife on Facebook.
Anthony Elonis' lawyers are comparing his postings to rap lyrics and artistic expression protected by the First Amendment.
In his postings, Elonis had written that he would like to see his wife's "head on a stick" and that he would cut her until her body was "a mess, soaked in blood, and dying." He hit "submit" and later was arrested and sentenced to 44 months in prison for making threats. His lawyers appealed.
The justices will explore whether his words were criminal or just bloody good fiction meant to make a statement.
In August, the New Jersey high court had wrestled with similar arguments when it took up the case of rapper Vonte Skinner. A Burlington County prosecutor had used Skinner's lyrics against him when trying him on charges he had attempted to murder a Willingboro man in 2005.
That court decided Skinner's rights were violated because the prosecutor read Skinner's lyrics to the jury, 13 pages in all, unedited, prejudicing the trial. Skinner had written them four years before the shooting and there were no direct links that would make the lyrics relevant as evidence, the court said.
"One would not presume that Bob Marley who wrote the well-known song 'I Shot the Sheriff,' actually shot a sheriff or that Edgar Allen Poe buried a man beneath his floorboards...simply because of their respective artistic endeavors on those subjects," the court opinion said.
Skinner's notebooks, containing the handwritten lyrics, were discovered in his car after his arrest. They did not name his alleged victim or provide a motivation for the violence that he wrote about. "Yo, look in my eyes. You can see death coming," Skinner wrote.
Skinner will get a new trial in March. This time the lyrics will not be Exhibit A.
In the Elonis case, there was no shooting. He was prosecuted for threatening his wife after she left him and took their three children with her. "I am not going to rest until your body is a mess, Soaked in blood," he wrote. He also wrote that he wanted to slit the throat of an FBI agent who had questioned his Facebook postings and that he was considering shooting children at an elementary school to make a name for himself.