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TIME Tech legal The Supreme Court Is About to Make a Big Decision About Facebook Free Speech Till JacketGetty Images/Photononstop RM The case could have big implications for how we use social media

The Supreme Court on Monday will consider whether violent language posted on social media is covered by the First Amendments protection of free speech.

The case, Elonis v. United States, hinges around the question of whether a Facebook message can be considered a true threat, or a threat a reasonable person would determine to be real. That would be an important distinction, because true threats dont get First Amendment coverage. But it wont be an easy problem to solve: While it can be easy to call a threat true if its given verbally, making that call gets harder when threats are posted online, where they lack the context, tone and other indicators of intent present in verbal communication. Its also arguably easier to make threats online, especially if its done anonymously.

What happened?

A lower court had sentenced Pennsylvania man Anthony Elonis to about four years in federal prison over several Facebook posts threatening his estranged wife. The posts included, among other things, raps about slitting his wifes throat and about how her protection order against him wouldnt be enough to stop a bullet.

A sample:

Theres one way to love you but a thousand ways to kill you. Im not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.

But how is that not a true threat?

Elonis contends his posts werent a threat to his wife but rather a therapeutic form of expression. Its commonly accepted that violent images are often part of rap music and other media, and artistic expression is protected under the First Amendment, explaining Elonis legal strategy. Still, the issue of whether Elonis had the intent to threaten is not necessary for a threat to be deemed a true threat. That requires only for a reasonable person to believe a threat is authentic.

The dividing line here is whether were judging the threat based on the intent of the speaker, or on the reaction of the people who read it and wouldve felt threatened. Thats really the key question, said William McGeveran, a law professor at the University of Minnesota.

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The Supreme Court Is About to Make a Big Decision About Facebook Free Speech

First Amendment Petcha Kutcha - Sheyla Suarez
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By: Sheyla Suarez

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First Amendment Petcha Kutcha - Sheyla Suarez - Video

(Part Two) Gadsden County First amendment Audit
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By: HONORYOUROATH

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(Part Two) Gadsden County First amendment Audit - Video

The Obama administration continues to strong-arm journalists into revealing sources

Bruce Brown is is executive director of the Reporters Committee for Freedom of the Press, and has argued numerous First Amendment cases before US courts.

By now, everyone knows the feds have been handing out record numbers of subpoenas to journalists hoping to scare them into giving up their sources. The troubles of New York Times reporter James Risen, the most well-known of these besieged journalists, remain unresolved almost seven years after the Bush administration first knocked on his door with a subpoena to appear before a grand jury.

There is another recent subpoena fight that has flown under the radar but ought to be brought into fuller view. It should be a wake-up call for anyone who cares about press freedom to heed a complaint that judges have been making since the Supreme Court looked at this issue 40 years agothat journalists cant prove that their sources dry up when the reporters they leak to are stalked by process servers.

The latest subpoena fight began in the summer of 2009 when Mike Levine, then a reporter for Fox News, wrote a story about the federal government probing links between Somali Muslims in Minneapolis and Al Qaeda. Citing law enforcement sources, Levine reported about grand jury indictments in the investigation while they were still sealed. The government successfully obtained pleas from several defendants and then went on to publicly tout the victory, but the leak set off alarms.

By early in 2011, the Justice Department had subpoenaed Levine, saying that it needed to know the identity of the law enforcement sources cited in his article. Levine moved to quash the subpoena, saying he promised his sources confidentiality. And the government sought to enforce it, saying that federal laws may have been broken.

All sound familiar? Levines case is but a piece in the onslaught of press subpoenas that have defined the Obama administration. But nothing was known publicly about this specific case until last May, when Levine, now at ABC News, wrote about it on the networks website. Then last month, US District Court Judge Royce Lamberth, who sits in DC, unsealed the docket.

Both from Levines account and court records, we learned that in July 2011, Lamberth denied the motion to quash. We also learned that the Justice Department in the end never forced Levine to testify. In April 2012, almost three years after Levines Somali story ran, prosecutors said they were withdrawing the subpoena. They offered no explanation as to why.

Levines case is more than just another example of the administration trying to force journalists to identify their sources. It stands out in part because of a statement by Lamberth in rejecting Levines arguments. The judge looked to a passage from the 1972 Supreme Court ruling in Branzburg v. Hayes, the one and so far only time that the press and the government have clashed over the issue at the nations highest court. In the passage, Justice Byron White wrote for a narrow majority in allowing prosecutors in a drug probe to obtain evidence from reporters trying to claim they were protected from testifying by the First Amendment. White said there simply wasnt enough empirical evidence to show that subpoenaing journalists would have a chilling effect on their sources.

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Press subpoenas are a bigger problem than youd think

Posted Mon, November 24th, 2014 3:31 pm by Amy Howe

Protesting at the funeral of a fallen soldier. Lying about your military record. Violent video games for children. Making videos about dogfighting. In the past few years, the Supreme Court has held that the First Amendment protects all of these forms of expression, even when very unpopular or offensive. Next week the Justices will hear oral arguments to determine whether Anthony Eloniss Facebook posts, which left his ex-wife extremely scared and an FBI agent worried about her familys safety, are entitled to the same kind of protection. Lets talk about Elonis v. United States in Plain English.

Eloniss legal troubles date back to 2010, when his wife left him, taking their two young children with her. He began to post lyrics from popular songs on Facebook, and he soon moved on to post his own, sometimes violent, rap lyrics. As part of his posts, Elonis included disclaimers about how his lyrics were merely fictitious, and that he was just exercising his constitutional right to freedom of speech. He also sometimes included links to the Wikipedia entry on the First Amendment and even the text of the First Amendment itself.

In the fall of 2010, Eloniss Facebook posts included several that discussed harming his ex-wife. One post was a take-off on a comedy routine available on YouTube: Elonis asked his Facebook friends whether they knew that it was illegal for him to say that he wanted to kill his ex-wife, and he added that it would be incredibly illegal to suggest that someone could kill his ex-wife by firing a mortar launcher from the cornfield behind her house. A day later, Elonis put up a post about shooting a kindergarten class.

These posts earned Elonis a visit from an FBI agent. After the visit, he posted about that encounter too, suggesting in rap lyrics that he had strapped a bomb to his body and would have detonated it if he had been arrested. This post was apparently the last straw for the FBI: a few weeks later, Elonis was arrested and charged with violating 18 U.S.C. 875(c), which makes it a crime to communicate threats in interstate commerce for example, over the Internet.

Elonis claimed that the charges against him should be dismissed because you can only violate the law if you intend to harm someone. And he didnt have any plans to hurt his ex-wife, the FBI agent, or anyone else: his rap lyrics and venting about his problems on Facebook just made him feel better. But if he can be convicted without any intent to hurt anyone, he added, that would violate the First Amendment. A federal trial court rejected both of his arguments. Instead, it instructed the jury, it could find Elonis guilty if the average person, looking at a statement objectively, would believe that it was intended to be a threat. The jury convicted Elonis, and he was sentenced to nearly four years in prison.

As Elonis emphasized in his Facebook posts, the First Amendment protects a right to free speech. But that right is not unlimited; the classic example is that you cant shout Fire! in a crowded movie theater when there is actually no fire, because the resulting chaos could lead to injuries or even death. The Supreme Court has held that the First Amendment also does not protect true threats, but it has not specifically said how courts should decide what is (or is not) a true threat. This case could give it that opportunity.

In his briefs at the Supreme Court, Elonis argues that a threat by its very nature requires an intent to cause fear. Because the whole point of a crime, he says, is that the defendant meant to do something wrong, the Court has interpreted criminal laws as requiring a wrongful intent even when they did not explicitly do so. Making it a crime to threaten someone even if you didnt intend to hurt them, he contends, would cause people not to speak at all, because they would be worried about whether they could go to jail based on a jurys possible misinterpretation of their comments. This is particularly true, he concludes, when you are talking about alleged threats on social media and email, where nuance and tone matter so much and its so easy to misconstrue what someone says.

The federal government counters that, as the trial court in this case instructed the jury, courts should determine whether something is a true threat by looking at whether an average person would interpret the statement as reflecting a serious intent to harm someone. The government emphasizes that courts and juries can and should look at the context in which the alleged threat was made, and at the reactions of the people who heard the alleged threat, but they should not consider whether the defendant himself actually intended to carry out the threat. This, the government explains, is because even if Elonis didnt intend to harm his ex-wife or the FBI agent, they were still afraid and their lives were still disrupted: the First Amendment doesnt protect him even if he knew that he didnt mean to carry out the threats.

We dont generally think of the Justices of the Supreme Court as especially savvy about technology. They did acquit themselves well last Term, in a case involving whether police need a warrant to search someones cellphone after they arrest him. But that may have been easier because they all have cellphones. It is far less likely that any of these nine intensely private public figures are on Facebook or any other form of social media, so it will be interesting to watch them grapple with these issues.

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Drawing a line between therapy and threats: In Plain English