Supreme Court split on free speech protections for Facebook threats

The Supreme Court appeared split Monday over whether or not prosecutors need to prove that someone intends to carry out a threat posted on Facebook in order to punish them.

Many of the Court’s traditional conservatives seemed to oppose the idea that people should be judged on their intentions, not just their actions, as they heard a case that could have a profound impact on communications on the Internet.

{mosads}The Court’s more liberal judges, meanwhile, appeared supportive of narrowing the exception to the Constitution’s right to free speech.

“We’ve been loath to create more exceptions to the First Amendment,” said Justice Sonia Sotomayor.

The divide on Monday could foretell a tight ruling over whether or not a man should have received jail time for violent rap lyrics he posted on Facebook.

Anthony Kennedy, the traditional swing justice on the high court, said he feared a sweeping ruling could penalize not just people making threats they don’t intend to carry out, but also people telling the police about what they overheard someone else say.

Taken to an extreme, the government’s argument is that “the person who overhears [something incriminating] and repeats it is liable,” he said.

The case centers on Anthony Elonis, a Pennsylvania man who made a series of threats on Facebook that he said were intended as rap lyrics, similar to those of Eminem.

In 2010, he was fired from his job at a local amusement park after posting a picture on the social network from a Halloween event in which he held a knife to a co-worker’s neck.

“I wish,” he wrote in the caption.

Later, he posted a series of violent rants against his estranged wife outlining how he “would have smothered” her with a pillow “dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder.”

He also talked about committing “the most heinous school shooting ever imagined.”

In another post, he fantasized about slitting the throat of an FBI agent and “leave her bleedin’ from her jugular in the arms of her partner.”

Elonis was sentenced to more than three years of prison for making threats against fellow employees, his ex-wife, police and a kindergarten class.

He claims that he never intended to actually carry out the threats, and that juries should take people’s intentions into account when determining whether or not a rant counts as a “true threat” under the law.

Some of the Court’s conservative-leaning justices appeared unconvinced.

Justice Samuel Alito questioned whether Elonis’s lawyers were proposing that police would “have to get into the mind” of psychopaths intent on shooting up elementary schools.

“Congress wanted to say this is okay?” he asked incredulously.

Justice Elena Kagan, who usually aligns with liberal justices, countered that except for the federal rules over “fighting words,” the law does not declare: “It’s just that you should have known.”

“That’s not the standard that we typically use with regard to the First Amendment,” she said. Kagan seemed to make the case for some type of middle-ground “buffer zone” in the law.

Supporters of Elonis’s argument say that the government’s case against him could lead to a chilling clampdown of free speech on the Internet.

While threats against President Obama and other elected officials have been rising on Twitter and Facebook, for instance, it can often be incredibly difficult to tell whether or not someone is just being sarcastic or blowing off steam.

That’s even truer when it comes to a loved one, argued Justice Stephen Breyer.

“People do say things in domestic disputes that they’re awfully sorry about later,” he said.

Actual threats of violence, however, are “rather unusual,” retorted Justice Antonin Scalia, “even in the heat of anger.”

The American Civil Liberties Union and other free speech groups filed friend-of-the-court briefs ahead of the case supporting Elonis, as did multiple advocacy groups ranging from the People for Ethical Treatment of Animals (PETA) to anti-abortion activists.

Ignoring someone’s intentions would mean that “virtually any language that uses forceful rhetoric could be penalized,” Elonis’s lawyer, John Elwood, argued before the nine justices.

He brought up the recent unrest in Ferguson, Mo. He warned that siding with the government could give police a right to jail someone who posts a picture of the protests accompanied by Thomas Jefferson’s famous quote that “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”

On the other side of the argument, a number of anti-domestic violence advocates filed briefs in support of the government’s case that juries do not need to consider someone’s intention.

“The individual has to know and understand what the individual is saying,” government lawyer Michael Dreeben argued.

Context, he argued, should make it clear whether someone is an aspiring rapper trying to get their start or clearly making someone afraid for their life.

“The speaker chooses their audience,” he said, which is even truer on sites like Facebook that let users decide exactly who can see their posts.

Public threats, he argued, “are highly disruptive to society,” whether or not people actually intend to carry them out.

Elonis’s lawyer, Elwood, attempted to show how the man had tried to make clear that his posts were meant as rap lyrics, not actual threats.

Making a disclaimer that everything is purely for entertainment, however, “sounds like a roadmap for threatening a spouse and then getting away with it,” Alito said.