It has been a relatively boring year at the Supreme Court compared to last year with hot button issues like gay marriage, the ACA and patenting genes. However, one case that has leaped out at me is Elonis v. United States  This is a free speech case with wide ranging implications for online posting. Elonis was convicted by a jury and sentenced to jail for a little over 3 years because of posts he made on his facebook page threatening his ex-wife, ex-coworkers, a classroom of kindergarteners, and an FBI agent who was investigating the previous threats. Elonis' defense is that the posts were rap lyrics he composed and it may or may not be relevant that he posted them under a pseudonym "Tone Dougie" and included several disclaimers on his page that the lyrics were fictional and meant for artistic purposes.

The legal issue is that the jury was instructed to convict if a "reasonable" person would interpret the words as a threat. The plaintiffs are arguing that this standard is too vague and that the prosecution should be forced to prove subjective intent to threaten.

The interesting thing about this case is that none of the speech in question was political. Historically, the court has given a lot of leeway towards what can be said that can be considered political hyperbole, allowing for rather violent political speech. While the rant at police and threatening to bomb them might be political hyperbole, the threats towards his ex are clearly a personal, not political subject. 

Clearly, facebook can be, and is used as a tool by abusers to intimidate or threaten current or previous significant others. I think we can all agree that such speech is not protected by the first amendment. The difficulty is creating a standard by which to fairly determine when speech crosses the line into unprotected speech. I'm sure everyone here has had someone somewhere on the internet wish them dead, or even make direct threats or say that an entire class of people should be killed. It woukd be a pretty significant waste of resources to go around arresting every asshole troll, and as seen in Canada, laws that allow people to be arrested for hate or aggressive speech are not equally applied. (In Canada, 100% of hate speech cases were against white supremecists, does anyone believe that is the only political position that engages in threatening hate speech?) And that is why Elonis is getting support from a variety of groups from prolife groups to PETA and the ACLU.

www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/13-983_pet.authcheckdam.pdf

The actual posts in question are listed and quoted starting on page 25. Imo, this is an opportunity for the Court to reinforce the idea of subjective intent, at the same time, the Court could either rule that Elonis had subjective intent or order a new trial with different jury instructions. While the early broad threats are vague and unrealistic, when he posted following his ex wife getting a protective order "Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet? Try to enforce an order." Now you are talking a specific and plausible threat against someone who has affirmatively demonstrated that they fear him. To me, that is pretty solid evidence of subjective intent whether you surround it with disclaimers or not. And I don't think that singing it to a tune or in this case rapping it out if tune, magically changes it to art. I suspect that most juries would decide the same. That is one way the court could reinforce free speech, yet still send this bag of shit to jail.