On Monday, the Supreme Court will hear oral arguments in Elonis v. United States (docket number 13-983). The case tests the limits of the First Amendment in the context of threats on Facebook (and other social media, of course). You can get more interesting coverage of the case on NPR, Slate, and The Atlantic (highly recommended). I thought you might enjoy a brief but more technically correct description of the issues.
Background of the Case
Anthony Elonis posted a series of graphically violent posts on his Facebook page menacing his ex-wife, his former employer, a kindergarten class, and even an FBI agent that stopped by his house. The posts are so graphic and so explicit that it’s hard to feel much sympathy for him and hard to defend his right to make the statements under the First. In fact, the case isn’t about whether he’s guilty or not — it’s just a question of how the law should have convicted him, which is a nuance you won’t see much in the major media.
What’s the Issue in Elonis v. United States
The issue the Supreme Court needs to answer is actually the kind only a lawyer could get excited about. Should it be a crime to make threatening statements of Facebook only if the person subjectively intended to intimidate someone? Or is it enough if a reasonable person would know the statement would intimidate someone (the objective test)? I don’t follow First Amendment jurisprudence very closely, so I don’t fully understand the distinction but my understanding is that it’s much easier to convict someone under the latter than the former.
Here’s what’s not at issue: whether making legitimate threats on Facebook (or anywhere else) is protected by the First Amendment; it’s not.