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Fictional Scenario - Elonis v. U.S.

Apply Elonis v. U.S. to a realistic teen scenario. Memes as 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 alleging that he tested positive for the coronavirus but didn’t report his status to his basketball coach. 

If true, Andy could lose opportunities for an athletic scholarship for violating the team’s zero-tolerance COVID-19 health and safety regulations that require reporting. Even rumors could hurt his chances. His friends show him Sarah’s Instagram video of him having a coughing spell while dribbling a basketball on his driveway basketball court. Andy, who has severe allergies, becomes enraged at the possibility that he might lose an opportunity to play college basketball, but he has to go to his DJ job after school at the Boys & Girls Club where he volunteers. He has to act as if everything is okay.

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 “players know how to even the score” when liars make false accusations against them. Andy includes in the meme a series of skull emojis 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 whether the lyrics were referring to the coronavirus, or physical injury, or basketball they could be weaponized to hurt Sarah. The skull emojis confirm 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.