The U.S. Supreme Court could decide as early as Monday whether to clarify the First Amendment rights of people who use violent or threatening language on Facebook, in emails and other electronic media.
The justices are considering taking up two cases where defendants were convicted of making illegal threats despite claims they never meant any harm.
In one case, a Northampton County man ranted on Facebook in the form of rap lyrics about killing his estranged wife, blowing up Dorney Park, slitting the throat of an FBI agent and committing “the most heinous school shooting ever imagined.”
The other case involves a Florida woman who emailed a conservative radio talk show host about “second amendment gun rights” and said she was planning “something big” at a Broward County government building or school.
In both cases, the defendants were prosecuted under a federal statute that makes it crime to transmit a “threat to injure the person of another.” Those laws apply only to “true threats” that are not protected by the First Amendment under a doctrine established by the Supreme Court in 1969. The high court has said laws prohibiting threats must not infringe on constitutionally protected speech that includes “political hyperbole” or “vehement,” ‘’caustic,” or “unpleasantly sharp attacks” that fall shy of true threats.
Most lower courts say determining a true threat depends on how an objective person would understand the message. But lawyers for the defendants, along with some free-speech groups, say it should depend on the speaker’s state of mind. They say the rise of new forms of social media and the freedom of political discourse can lead people to misinterpret comments that are colorful political tirades or coarse rap lyrics not meant to threaten harm.
Those who support a subjective standard say the threat law should be governed by the Supreme Court’s 2003 ruling in Virginia v. Black. In that case, the court invalidated Virginia’s law against cross-burning because it did not include a crucial component: whether the Ku Klux Klan intended to intimidate someone by burning the cross.
The Obama administration says the cross-burning case does not require a specific intent to threaten. In its brief to the court, Justice Department attorneys say requiring proof of a subjective threat would undermine the law’s purpose.
The wife of the Bethlehem man, Anthony Elonis, testified at his trial that the postings made her fear for her life. One post about his wife 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.”
FBI agents visited Elonis at home after the amusement park that fired him contacted law enforcement officials about his posts. After the agents left, Elonis wrote: “Little agent lady stood so close, took all the strength I had not to turn the (woman) ghost. Pull my knife, flick my wrist and slit her throat.”
Elonis says he never meant to carry out the threats. He claims he was depressed and made the online posts in the form of rap lyrics as a way to vent his frustration after his wife left him.
Samuel Randall, attorney for Ellisa Martinez in the Florida case, said his client was attempting to make a mocking political point about the dangers of gun violence when she emailed the radio station. He said Martinez, of New Port Richey on Florida’s Gulf Coast, never intended to cause such a big problem or harm anyone.