According to the law, a statement becomes a “true threat,” and thus not protected by the First Amendment, if a reasonable person could be expected to believe the threat is authentic. There’s no need to prove that the speaker intended to make a threat, only that people subjected to the statement would reasonably feel threatened.

That standard is complicated now by social media platforms, such as Facebook and Twitter, that make people feel comfortable expressing thoughts they might not otherwise express in public, then allows them to send those thoughts, however fleeting and perhaps unrepresentative of their true selves, to audiences both intended and unintended. Suddenly, it is a lot harder to discern what is a real threat and what is simply spouting off.

But that doesn’t mean the standard should be scrapped entirely as online communication becomes the norm. It just means that the Supreme Court, which is considering a case now that could define what constitutes a threat in the digital age, must tread lightly in drawing a line that balances freedom of speech with the right to be free of the terror and disruption caused by threats.


The court is reviewing the case of Anthony Elonis, who was sentenced to almost four years in prison under federal law for a series of threatening Facebook posts he made concerning his estranged wife.

“There’s one way to love ya but a thousand ways to kill ya,” Elonis wrote in one post. “I’m not gonna rest until your body is a bloody mess, soaked in blood and dying from all the little cuts.”

Elonis’ lawyers are arguing that the posts were therapeutic, a way for their client to vent about the breakup. Elonis says he is an aspiring rapper, and the graphic imagery, he says, was modeled after one of his idols, Eminem.

The posts are thus protected as artistic expression, the lawyers say, and the court should take into account Elonis’ relatively harmless intentions, rather than submit his Facebook posts to the “reasonable person” test. Otherwise, people may not feel free to express themselves online to the level allowed by the First Amendment, for fear that statements may be misconstrued or taken out of context.


The court, which has protected vile and odious speech before, may buy that argument.

After all, social media users often say things online they wouldn’t otherwise say. Many people consider social media to be similar to an informal conversation between friends, even if posts are often very public and usually stored online indefinitely.

The Internet also provides a distance between people and the impact of their own words, freeing users to push the limits of propriety and good taste in a way they never would face to face.

But those words still have power. That they were written online made no difference to Elonis’ wife, who won a protection from abuse order following her estranged husband’s online rants, only to have him publish a post wondering if that order could “stop a bullet.” You can’t lessen the impact of those posts by adding “LOL” at the end.


That’s why it’s important that the court takes context into mind when deciding the case. Elonis made threatening statements about his wife, however disguised as rap lyrics, while she was taking the precarious steps of ending their relationship.

Contrast that with the case of a Texas teenager who went to jail for months after making a joke about a school shooting while playing a game online, or with the case of a New Jersey teacher who was suspended without pay and forced to see a psychiatrist because of a post containing a quote from the HBO show “Game of Thrones.”

Yes, there is clearly a difference between a seemingly threatening statement made online and one made by a person standing on your front porch, a difference that society is only beginning to understand as it copes with new technology.

But there is also a difference between a post about an ex-partner in the middle of a contentious separation, and one made to no one in particular during an online game. The law should reflect that.

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