Today, the U.S. Supreme Court is hearing the matter of Elonis v. U.S. In this case, a man from Pennsylvania was sentenced to four years over threats he made to his wife. Soon after his wife obtained a protective order, Mr. Elonis posted to facebook that his wife should fold up the order and see if it was thick enough to stop a bullet. He also made numerous other posts about slitting his wife's throat and leaving her a "bloody mess." Some of the postings were made similar to rap lyrics, and Mr. Elonis maintains that he did not intend to threaten his wife and was merely trying to cope with a stressful situation.
Generally, speech is protected under the 1st Amendment of the U.S. Constitution, however, threats are not considered protected speech. On the other end of the spectrum, artistic expressions are typically protected. Assuming rap is not the typical music of choice of the Supreme Court Justices, will that make a difference as to whether the postings are protected or not? As was noted by the Supreme Court of New Jersey, no one actually thought that Bob Marley shot the sheriff.
While the Supreme Court case is about a criminal sentence under Federal law, in Maryland, a threat can give rise to a protective order if it is "an act that places a person eligible for relief in fear of imminent serious bodily harm." It is a fact-specific inquiry. For example, if the threat is made over the phone or via voicemail, the Judge may or may not consider it "imminent." Other factors, such as any past threats or violence can also make a difference, as the Judge also needs to determine if the person would reasonably be in fear. Other factors, such as size of the aggressor and availability of weapons may also be factors.