The U.S. Supreme Court appeared conflicted on Monday over whether to uphold the conviction of a Pennsylvania man found guilty of making threatening statements to his estranged wife, law enforcement officers and others on social media.
The nine justices, hearing an hour of oral arguments in a closely watched case testing the limits of free speech online, considered an appeal filed by Anthony Elonis, who served prison time for posting a series of statements on Facebook in 2010 after his wife left him.
The case touches upon the rise of social media and how people use it to express strongly held feelings. But the legal question is whether prosecutors needed to show Elonis' intent to threaten, or if it was enough for them to show merely that a reasonable person would have felt threatened.
His Facebook posts, written in the form of rap lyrics, talked about killing his wife, knifing a female FBI agent and shooting schoolchildren. After a court granted his wife a protective order against him, Elonis posted: "Is it thick enough to stop a bullet?"
Some justices appeared concerned about a broad range of speech being criminalized, including ill-advised remarks by teenagers on social media and songs by rap artists such as Eminem known for violent imagery in their lyrics.
Chief Justice John Roberts read aloud Eminem's lyrics from the song "'97 Bonnie and Clyde" in which the rapper describes dumping his wife's body in a lake.
Roberts asked whether Eminem could have been prosecuted. U.S. Justice Department lawyer Michael Dreeben said Eminem would not be prosecuted because of the different context. Everyone knows Eminem is an entertainer and the comments were not made at a time when his wife had sought a protective order, Dreeben said.
Other justices expressed concern about prosecutions undermining the U.S. Constitution's First Amendment free speech protections.
Justice Elena Kagan said the government's proposed standard was "you should have known you were going to cause fear - and that's not the kind of standard we usually use under the First Amendment."
Among those sounding skeptical of Elonis' argument that his remarks were intended as art or a form of therapy was Justice Samuel Alito. "This sounds like a roadmap for threatening your spouse and then getting away with it," Alito said.
Elonis was convicted of violating a federal law that outlaws sending a threatening communication and sentenced to 44 months in prison.
A ruling is expected by the end of June.
The case is Elonis v. USA, U.S. Supreme Court, 13-983.
