Hearing arguments in a case pitting the government against Anthony Elonis, a man who posted rap lyrics online that contained language deemed personally threatening by his estranged wife, US Supreme Court Chief Justice John Roberts asked whether the equally violent references made by the rapper Eminem to his own ex-wife in some of his songs should make him liable for prosecution. The government’s lawyer answered that they should not, thus making the difference between what Eminem does and what Mr. Elonis did the line between artistic license and criminal conduct.
It looks as though the Supreme Court may need to brush up on its literary theory.
What is at stake in the Chief Justice’s question goes to the heart of a specific way of using language that we call fictional. Fiction, as Joshua Landy has recently defined it, is “a verbal performance in which the events depicted never happened, and everyone knows they didn’t.” A simpler version would be “untrue statements known to be untrue.”
Other, more philosophical truths
The problem with this formulation, as the Court is discovering, is that with fiction it’s not always the case that everyone knows its fiction. In Elonis vs. United States, the test for whether a statement is merely a fiction and hence protected speech, or a “true threat” subject to prosecution, turns on how a reasonable person would interpret it. But just as Justice Roberts felt forced to ask whether the standard in a given case should be any reasonable person or, for instance, “a reasonable teenager on the internet,” different schools of literary critics have ranged from arguing that discovering a given text’s meaning relies on reconstructing its appropriate “context of reception” to asserting that texts posit their own “ideal readers.”
In fact, over time, legal notions of what determines guilt have changed as much as have critical notions of what a text means. In the Middle Ages, guilt was often determined though “trial by ordeal,” under the assumption that God would protect the truly innocent from feeling the full force of the pain inflicted on them. The “intent” of the accused meant so little that farm animals could be put on trial by the same methods. Medieval literary criticism, for its part, spelled out four different levels of meaning that a text could be read for, none of which depended on the author’s intent.
In the Renaissance, critics became very concerned with how texts related to reality. While they understood from Aristotle that fictional texts would not need to represent things as they actually occurred, they also believed that such fictions should tell other, more philosophical truths than would a merely accurate rendering of facts. By making the value of realistic but untrue depictions depend on judgments about what ends those depictions served, critics implicitly began to assume that a text’s ultimate meaning depends on its author’s intent, such that a modern critic such as the Cambridge professor Anthony Close could eventually argue that in literary criticism we “presuppose that what is meant is what was intended, because we are congenitally unable to do otherwise.”
The importance of intent, in other words, is an index of how established the practice of fiction is in a given society. The intent behind a text only becomes a question for a culture that values the practice of portraying untrue things as if they were true, and that distinguishes such practices from mere lying.
Our culture today is very clearly one of those. Artists in our culture know the boundaries separating fictional from true language, and they explore and push those boundaries. When writing about things as if they were true but meaning something else, artists are employing the literary trope of irony. But they also know that for irony to be irony, it has to be signaled in their work by their choice of genre: by the use of other tropes such as hyperbole (think of Stephen Colbert); by the creation of different personae (think of him again); or by how they package, classify or otherwise frame their words.
Because Eminem said it instead of someone else?
Justice Roberts interrupted the government lawyer’s attempt to answer his question about Emimem’s lyrics by posing a provocative answer of his own: is it not the case, he asked, that the reason we don’t prosecute Eminem is “because Eminem said it instead of someone else?”
The short answer is yes: we grant artists that the apparent truths they write are not to be taken literally in part because they have convinced us, through their artistic choices and the cultivation of their personae, that they are artists and not sociopaths. Whether a reasonable person would feel threatened by their words depends in large measure on how well they have accomplished that task. In determining whether the government did enough to establish Mr. Elonis’ intent, the Justices should take stock of the long history of fiction, and how changes in the way we read affect the responsibility of those who write.