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In Elonis v. United States, SCOTUS Will Decide: Threats or Free Speech?

These are the facts.

Anthony Elonis was convicted — under 18 U. S. C. §875(c), which states: “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.” — of posting on Facebook threats to injure his coworkers, his wife, and others.

Of his estranged wife, Elonis said, “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.”

Later, he wrote of an FBI agent: “Little agent lady stood so close, took all the strength I had not to turn the [expletive] ghost. Pull my knife, flick my wrist and slit her throat.

The convicted and his lawyers have long contended that his posts, some of which contained song lyrics penned by the rapper Eminem, were not meant to threaten anyone, but just Elonis’ own way of dealing with personal, emotional pain. But the jury wasn’t convinced, and neither was the Third Circuit Court of Appeals.

This is the issue.

In June 2014, the Supreme Court of the Unites States agreed to hear the case, during which it will attempt to determine (from SCOTUSblog) “whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a ‘reasonable person’ would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten.”

Boil it down, and this case is about “true threats,” which the court will be forced to define as it hears this final appeal, and forced to apply to the relatively ungoverned realm of social media.

Director of the Pennsylvania Center for the First Amendment Robert Richards falls in favor of Elonis on this issue, arguing that people use social media “to say all kinds of things” without saying anything to any one person in particular. Others argue that threats made via social media are very real, with very real economic and psychological ramifications.

And that: That’s for the Supreme Court to decide.

Arguments will begin on Monday, December 1, 2014.

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