Should These Threatening Facebook Comments Be Considered Free Speech?

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Earlier this week, the Supreme Court agreed to hear a case that will examine a modern take on an old argument about free speech. As a result, the Court is going to be reading a lot of nasty Facebook comments.

In 2010, two lower federal courts ruled that Anthony Elonis' crossed a line when he made Facebook posts about killing his wife, school children, and FBI agents. He was convicted of making threats against others and served three years in prison. 

Elonis' attorneys are arguing that his posts did not imply that he would go through with the acts he described, and that prosecutors must prove that he intended the comments to be threatening. It is up to the Supreme Court to determine exactly how threatening his posts were and if such statements should be allowed under the law.

In the petition filed by Elonis' legal team, the threatening comments were outlined at length. Below are just some of specific comments which the Supreme Court will be investigating.

Please note that these comments are violent and graphic in nature:

After Elonis was fired from his job, he posted this update and tagged his coworker in it.



After his estranged wife obtained a Protection from Abuse order, he wrote this post. It is an adaption of a "Whitest Kids U' Know" sketch, where he threatens his wife a number of times. 

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Another post mocking his wife's Protection from Abuse order. Looks like Elonis is getting exactly what he asked for, "an education on true threat jurisprudence." 



In this post, Elonis threatens innocent elementary schoolers. 



In perhaps his most difficult to defend comment, Elonis wrote a Facebook Note about FBI Agent Denise Stevens, who visited him during the initial investigation at his home. Elonis' legal team is arguing that this note was intended to be rap song lyrics. 









Right now, the court's precedent is an 11-year-old case, Virginia v. Black, where the Supreme Court ruled that cross burning alone could not be equated with intimidation, because not all cross burning is threatening. 

However, much has changed in eleven years. Lower courts have ruled a threat is a "true threat" if the subjective intent of the speaker is to threaten, or if the objective interpretation is that it was threatening. In Elonis' previous convictions, the court used the latter interpretation of the law.

This is the current federal law on the books:

Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

Elonis' lawyers are making an argument for his threatening posts by saying that the media audience does not understand his perspective, "The issue is growing in importance as communication online by e-mail and social media has become commonplace." The petition continues, "Modern media allow personal reflections intended for a small audience (or no audience) to be viewed widely by people who are unfamiliar with the context in which the statements were made and thus who may interpret the statements much differently than the speakers intended."

While the Justice Department wants the ruling to stand, the Supreme Court does have a history for strongly defending free speech. In this case, considering the threats were made to children, FBI agents, and his family, the court may rule against free speech when the threats reach this degree of intensity and specificity. 

The case is Elonis v. United States, and you can read the full petition here.

This article is from the archive of our partner The Wire.