Supreme Court appears unlikely to protect Facebook threats

Reporting from Washington —  In its first case testing the limits of free speech on social media, the Supreme Court showed little interest Monday in extending new protections to people who post messages threatening to kill or hurt others.

The justices sharply questioned the lawyer for a Pennsylvania man who was sent to prison for posting on Facebook about killing his ex-wife and cutting the throat of an FBI agent who investigated the threat.

Citing the 1st Amendment, attorney John Elwood said prosecutors should have been required to prove that the messages were not only perceived as threatening, but that his client, Anthony Elonis, intended to scare and intimidate the individuals.

Elonis, a former amusement park worker, insisted that he did not mean to frighten his ex-wife and that the rants were merely a way to blow off steam.

None of the justices appeared to agree.

“How does one prove what’s in somebody else’s mind?” asked Justice Ruth Bader Ginsburg, returning to the bench just days after being hospitalized last week to treat a heart blockage. In this case, she said, a “reasonable person [would] think that the words would put someone in fear.”

The case of Elonis vs. United States has drawn attention because the court’s decision could further refine the outer limits of free speech in the digital age.

As a legal matter, the case does not turn on the fact that the threats were made on Facebook or the Internet. But the spread of social media has led to an explosion of caustic speech and acerbic criticism that some may see as threatening.

Most justices appeared to agree with a government lawyer who argued that online threats should to be taken as seriously as other threats.

“You’re accountable for the consequences” of your words, said Deputy Solicitor Gen. Michael Dreeben, noting that it is a federal crime to transmit “any threat to injure” another person via Internet or telephone.

The case began in 2010 when Elonis turned to his Facebook page after his wife moved out with their two children. Writing in rap-style music lyrics, he said there were “a thousand ways to kill ya, and I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.”

When his wife obtained a restraining order from a judge, Elonis returned to his Facebook page, pondering whether the court order was “thick enough to stop a bullet.”

He also posted messages that spoke of killing an FBI agent who questioned him and of carrying out the “most heinous school shooting” at a kindergarten.

A jury convicted Elonis for posting threatening messages and a judge upheld the verdict on the grounds that a reasonable person would have seen the posts as threats.

In his appeal to the high court, his lawyer defended Elonis’ statements as free expression, comparing them to rap songs, which often contain violent images and language.

Chief Justice John G. Roberts Jr. said he was unswayed by that argument. Elonis can claim “it’s therapeutic or it’s art,” but that should not be enough to escape prosecution, he said.

Agreeing, Justice Samuel A. Alito said he did not see how a jury can “get into the mind of this obsessed, somewhat disturbed individual” to decide whether he intended to “cause a panic.”

In previous rulings, the court made clear that “true threats” are not protected by the 1st Amendment. But trial judges have been divided over whether prosecutors must prove the defendant had an intent to frighten or intimate his target.

The justices’ arguments Monday suggested the court may be ready to settle that question, potentially making it easier to convict those who post threatening messages.

Victims of domestic violence urged the justices to uphold the conviction. They said women who are stalked or harassed by ex-spouses and others deserve the protection of the law when threats are made.

Free-speech advocates supported Elonis, saying they worried about giving the government too much power to punish rants and offensive words.

Dreeben, the Justice Department lawyer, said threats to injure, murder or cause mass destruction should be prosecuted and punished as serious crimes. They cause “fear and disruption to society and to the individuals who are targeted,” he said.

For example, he said people who call in a bomb threat to a school deserve to be prosecuted and should not be allowed to hide behind the excuse they were drunk or did not intend to be taken seriously. If you “know what you’re doing,” you can be prosecuted for making a threat, he said.

Similarly, he said, when people are arrested for threatening to kill the president, they can be prosecuted if their words sound like a true threat, regardless of their actual intent. The Secret Service “doesn’t have access to the private intentions of the individual,” he said. “The threat causes the harm.”

Twitter: @DavidGSavage