The Supreme Court agreed Monday to consider whether violent images and threatening language posted on Facebook and other social media constitute a true threat to others or simply the protected rants of someone imbued with what one advocate called “digital courage.”
The court accepted the case of a Pennsylvania man who was sentenced to nearly four years in federal prison for posting the ominous photos and making the violent rants on his Facebook page against former co-workers, law enforcement officials and especially his estranged wife.
Anthony D. Elonis contends that the postings, which included the lyrics of songs by the rapper Eminem, were free speech — attempts to deal with the pain of his personal problems and not specific threats to harm anyone. The justices will consider the case in the term that begins in the fall.
Elonis’s attorney, John P. Elwood, said the case presents an opportunity for the court to reconsider its traditional jurisprudence about how to gauge the seriousness of a threat in the modern age.
“Communication online by email and social media has become commonplace, even as the norms and expectations for such communication remain unsettled,” the petition said. “The inherently impersonal nature of online communication makes such messages inherently susceptible to misinterpretation.”
Elonis’s effort to have the court review the issue was supported by groups such as the Thomas Jefferson Center for the Protection of Free Expression.
It and two other free-speech groups said the kinds of threats the court has considered in the past have “been supplanted by anonymous trolls wreaking havoc on message boards and individuals who, perhaps emboldened by too much ‘digital courage,’ treat the internet as a global sounding board where anything goes.”
The brief said the court must consider “a new breed of threat cases informed by the internet, social media, and other revolutionary developments in communication that earlier cases never contemplated.”
The Obama administration, which did not want the court to take the case, said there was nothing particularly distinguishing or modern about Elonis’s threats, except for the forum.
Elonis speculated about blowing up elementary schools and threatened co-workers. He posted about his estranged wife: “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.”
When an FBI agent visited Elonis to discuss the postings, Elonis wrote later on Facebook: “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.”
Elonis’s petition to the court said: “Although the language was — as with popular rap songs addressing the same themes — sometimes violent, petitioner posted explicit disclaimers in his profile explaining that his posts were ‘fictitious lyrics,’ and he was ‘only exercising [his] constitutional right to freedom of speech.’ ”
In one post, he mimicked a comedy troupe’s routine about what constituted a threat.
“Did you know that it’s illegal for me to say I want to kill my wife?” Elonis wrote. “Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife.”
The justices said they will consider whether federal law “requires proof of the defendant’s subjective intent to threaten.”
The court for years has held that “true threats” to harm another person are not protected speech under the First Amendment.
At Elonis’s trial, the jury was told that he could be found guilty if an objective person could consider his posts to be threatening. Elwood told the court that was the wrong standard and that the jurors should have been told to apply a subjective standard and decide whether Elonis meant the violent messages to be threats.
Elwood said courts have been divided on the issue since the Supreme Court’s 2003 decision in Virginia v. Black. The court invalidated Virginia’s broad prohibition on cross-burning because it said the law lacked a requirement of proof that the Ku Klux Klan intended to intimidate someone by burning a cross.
The case is Elonis v. U.S.
The Supreme Court decided against reviewing an appeals court’s decision that a suburban Milwaukee school district had erred by holding high school graduation ceremonies in a local church, where students and their families were surrounded by religious artifacts and messages.
The court gave no reason for not accepting the case, and Justices Antonin Scalia and Clarence Thomas said the court should have heard the dispute . They said the lower court’s decision was at odds with some of the reasoning in the high court’s recent ruling allowing sectarian prayers at legislative meetings.
From 2000 to 2009, the Elmbrook School District held graduation ceremonies for two high schools at an evangelical “megachurch” because of convenience and comfort.
But the practice was challenged by non-Christian students and parents who objected to graduates receiving their diplomas under a large Latin cross and amid religious images and literature.
The U.S. Court of Appeals for the 7th Circuit agreed that the practice violated constitutional provisions about government establishment of religion and coercion.
“The sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state,” said the majority in a 7 to 3 ruling.
Scalia said he understood those who objected to public displays of religion: “It parallels my own toward the playing in public of rock music and Stravinsky.” But he said that doesn’t mean a ban can be imposed by law through the First Amendment.