JUDY WOODRUFF: When writing in social media, like Facebook, what is defined as a threat and what is protected by free speech? That was the question at the center of a case before the Supreme Court today.
Jeffrey Brown has the story.
And a warning: This case contains some graphic language.
JEFFREY BROWN: In 2010, Anthony Elonis began writing Facebook posts about his ex-wife, angry rants filled with violent language. She filed a restraining order. And eventually Elonis was charged with threatening to injure another person and sentenced to four years in prison.
Now the Supreme Court must decide were indeed threats under the law or an exercise of his First Amendment rights.
And Marcia Coyle of “The National Law Journal” was of course at the court today to hear the arguments.
Marcia, first, give us a little bit more details, a little bit more background on this case.
MARCIA COYLE, The National Law Journal: All right.
Mr. Elonis was obviously having difficulties after he separated from his wife and his children. He was unable to do his job at an amusement park outside of Allentown, Pennsylvania. He was sent home from work several times by his employers because he was crying at his desk.
And also he was accused of sexual harassment by a co-worker, at least one co-worker. Ultimately, he was fired by his job, and he did do a post involving his co-workers at the amusement park that wasn’t a very good one, but he wasn’t charged under that. It was the posts that he made involving violent statements against his wife, against law enforcement officials in particular, an FBI agent who visited his home after the FBI began monitoring his posts, and also against elementary schools, threatening possibly to go in and have a major mass shooting.
JEFFREY BROWN: All right, so let’s look at one of the posts that he sent to his wife.
We’re going to put up the graphic here: “There’s one way to love you, but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
Now, strong stuff, clearly. His argument, the argument from his lawyer today was what, that this is protected somehow?
MARCIA COYLE: Right.
Actually, he made the same argument that he basically did in — at trial and on appeal before the case got to the Supreme Court, and that is, under the federal law that he was charged under, this law makes it a crime to transport in interstate or foreign commerce any communication that expresses a threat to do or to inflict bodily harm on another person.
JEFFREY BROWN: In this case, over the Internet.
MARCIA COYLE: That’s right. Exactly. The Internet is interstate commerce.
His lawyer argued today, as his lawyers did previously, that this law requires a subjective intent to threaten, and that he didn’t have that, that these posts were really cathartic for him, that he was trying to work through his anger and also, after he was separated from his wife, he took an interest in rap lyrics, and he did have — on some of these posts, he had taken the name of a rap artist.
JEFFREY BROWN: Yes. There was even the suggestion that it was sort of a performance in a way, right?
MARCIA COYLE: Right. Exactly.
Some of the posts were in lyrical form, and his name — his rap name was Tone Dougie.
JEFFREY BROWN: So, how did the justices take this argument?
MARCIA COYLE: Well, some of the justices were critical of the argument.
Justice Ginsburg right away asked, well, how — with subjective intent, how does the prosecution get into his mind? How do they prove subjective intent? And Mr. Elonis’ lawyer said, well, you look at the circumstances, you look at the posts. This is something that juries do in criminal cases.
Other justices, like Justice Scalia, felt that this speech had no value, no First Amendment value. The Supreme Court has held that the First Amendment doesn’t protect true threats. And as Justice Kennedy said at one point, the court didn’t do the language or the law any real benefit by using the phrase true threat.
JEFFREY BROWN: You know, one of the most interesting aspects of this of course is that it’s said to be the first time the justices are taking up this question of limiting speech in social media. Right?
MARCIA COYLE: Yes.
JEFFREY BROWN: So, is there a difference? Was that a big element to that, the argument today?
MARCIA COYLE: It actually — it actually was not a major element, but but — it came out in the questioning of the justices, particularly by the — on the government’s argument.
The government’s argument is that this law has no specific intent requirement. It’s silent. And so it has a general intent, and the way that is interpreted is, if a jury finds that a reasonable person looking at Mr. Elonis’ statements perceives them as threats, then the government gets a conviction.
That led to questions from some of the justices about, well, who is the reasonable person? What about teenagers who post some pretty awful things on the Internet these days?
JEFFREY BROWN: Yes.
MARCIA COYLE: Is the reasonable person a reasonable teenager?
JEFFREY BROWN: You know, and a lot of people of course are — it resonates with a lot of people, their feeling. I have got a graphic here from the Pew Center, a poll, that shows people experiencing — 40 percent of people experiencing some variety of harassment.
People are online more. Right?
MARCIA COYLE: Absolutely.
JEFFREY BROWN: Language is used a little differently.
MARCIA COYLE: Yes.
JEFFREY BROWN: And now we’re seeing it come up into law.
MARCIA COYLE: Yes.
And Chief Justice Roberts, during the argument, he quoted lyrics, rap lyrics, that really were from Eminem. And he asked…
JEFFREY BROWN: That probably doesn’t happen every day at the Supreme Court.
MARCIA COYLE: No, it doesn’t, not at all — and to the government’s lawyer, and basically said, well, you know, what is this? How is a jury — what’s a jury supposed to do with something like this?
And the government’s lawyer said, look, clearly, that’s entertainment. That was done in a concert setting. And the chief justice came back at him and said, well, what about an aspiring rap artist, the first time he posts?
So the court was also looking for some kind of middle ground here. Justice Kagan said, you know, you’re basically saying that there is the lowest standard of proof for the government, but doesn’t the First Amendment require something more here?
JEFFREY BROWN: Yes.
MARCIA COYLE: But the government says there is no First Amendment value to criminal threats.
JEFFREY BROWN: All right, a very interesting case in the digital world, huh?
MARCIA COYLE: Fascinating case.
JEFFREY BROWN: Marcia Coyle of “The National Law Journal,” thanks so much.
MARCIA COYLE: My pleasure, Jeff.