Jeff Dion of the National Crime Victim Bar Association speaks with reporters after arguments in the case of Anthony Elonis, who was convicted in 2010 of threatening his wife via social media, at the Supreme Court building Dec. 1. (Jonathan Ernst/Reuters)
As the chief justice of the United States name-checked Eminem and speculated about rap-
obsessed teenagers, the Supreme Court struggled Monday with how to draw a digital-age distinction between illegal threats and violent speech that is nonetheless protected by the First Amendment.
obsessed teenagers, the Supreme Court struggled Monday with how to draw a digital-age distinction between illegal threats and violent speech that is nonetheless protected by the First Amendment.
The court’s first foray into examining speech made on social media featured rap lyrics and Facebook “likes” but relied on ancient legal concepts about intent and negligence.
The justices seemed reluctant to accept the government’s position that a threat exists whenever the speech in question would make a reasonable person fearful. But there did not seem to be a consensus on what more prosecutors should be required to prove.
The attorney for Anthony Douglas Elonis, a Pennsylvania man convicted of Facebook threats directed toward his estranged wife, a kindergarten class and an FBI agent, said his client should not have been convicted without prosecutors showing that he intended for his crude and violent Facebook posts be taken seriously.
That immediately troubled Justice Ruth Bader Ginsburg, at her customary spot on the bench five days after a heart stent procedure.
“How does one prove what’s in somebody else’s mind?” she asked. “This case, the standard was would a reasonable person think that the words would put someone in fear, and reasonable people can make that judgment. But how would the government prove whether this threat in the mind of the threatener was genuine?”
John P. Elwood, representing Elonis, said several states already require such proof, which he acknowledged made prosecution more difficult. In Elonis’s case, Elwood said, his client went out of his way to characterize his postings as “art” and fiction, and not to be taken seriously.
