When does the First Amendment protect threatening speech online?

The Supreme Court decides on whether to protect threatening speech online

The Internet makes it easy to give anyone a piece of your mind and share it with the world in an instant. But if your words are aggressive or threatening, where’s the line between free speech and crime?

On Monday the Supreme Court heard arguments in Elonis v. the United States. Anthony Elonis of Pennsylvania made threats against his ex-wife on Facebook four years ago and was sentenced to 44 months in prison.

“It’s like crying fire in a crowded theater,” said Jeff Dion, deputy executive director of the National Center for Victims of Crime.

After his ex-wife left him with their two children, Elonis took to Facebook to vent, writing, “There’s one way to love ya but a thousand ways to kill ya. And I’m not going to rest until your body is a mess. Soaked in blood and dying from all the little cuts. Hurry up and die.”

A week later, he published another post, “Fold up your protective order and put it in your pocket. Is it thick enough to stop a bullet?”

Elonis says he was exercising his freedom of speech on Facebook and as an aspiring rap artist; his posts are in the style of Eminem lyrics. At trial, those arguments didn’t hold up, and Elonis was convicted on five counts of making illegal threats through interstate communications — a federal offense.

His lawyer told reporters after oral arguments wrapped up Monday that his client’s online comments were misinterpreted.

“I think that is a risk on the Internet — frequently speaking to people without context or tone, of course, body gestures, talking to people you do not even know in physical world. This is the first case where anyone has ever done that. It kind of defeats the purpose of threatening someone if they do not know they are being threatened. It is common for people to say, ‘I’m not joking,’” said John Elwood, an attorney for Elonis.

The case boils down to what constitutes a true threat and whether the Supreme Court will use this case to define that more specifically in the age of the Internet. The court is expected to make its decision this summer.

What are the arguments for Elonis’ Facebook posts’ being protected by free speech?

What constitutes what the law calls true threat in communications?

If the Supreme Court rules against Elonis, what could this mean for the way we communicate online and the responsibility of these online platforms?

We consulted a panel of experts for the Inside Story

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