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Supreme Court justices struggled today with conflicting notions of where to draw the line between free speech and criminal threats in the Internet age. At issue is the conviction of a Pennsylvania man for making threats against his estranged wife and an FBI agent. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: After Anthony Elonis' wife left him, he began posting grisly messages on Facebook promising not to rest until her body was, quote, "soaked in blood and dying." She then got a court order barring him from threatening and harassing her, even indirectly. But he continued to post on Facebook, asking if the court order was, quote, "thick enough to stop a bullet" and musing about making a name for himself by shooting up a kindergarten. After a visit from a female FBI agent, he posted on Facebook saying it, quote, "took all the strength I had not to slit her throat, leave her bleedin' from her jugular." He was convicted of making illegal threats and sentenced to 44 months in prison. But he contends that such comments were just his way of venting and expressing himself just as rappers do. His case has become a test of what the prosecution must prove to win a conviction in an Internet threat case. The government, backed by victims' rights groups, contends that the prosecution must show only that a reasonable person would interpret the Facebook posts as threats to commit bodily harm. But speaking on the steps of the Supreme Court today, Elonis' lawyer, John Elwood, said the prosecution should have to prove far more.
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JOHN ELWOOD: It should have to prove that he knew that the statements that he was saying put a listener in fear.
TOTENBERG: Inside the court chamber, liberal and conservative justices were skeptical. Justice Ginsburg - how does one prove what is in somebody else's mind? Answer, you can examine a person's computer and cell phone records. Chief Justice Roberts - yeah, and you're going to find a lot of information that the guy is really angry at his ex-wife. And when he puts some of that online, you're going to say, well, that was just therapeutic venting. Justice Kagan - I'm trying to figure out what level of intent you want. The highest level would require proof that the purpose was to put a person in fear. A step down would be that I know that I'm going to place this person in fear, but I'm fulfilling my artistic fantasies. And a third level would be recklessness, meaning that you know there is a substantial probability that you'll place that person in fear, but you don't know it to a certainty. Elwood picked option two, knowledge that you would put someone in fear. Justice Kagan - what's wrong with a recklessness standard? It gets you up one level from what the government wants. Elwood replied that it would allow people, many of them teenagers who are just shooting off their mouths, to be thrown in jail. Justice Alito, however, replied that Elwood's standard would provide nothing short of a, quote, "roadmap for threatening a spouse and getting away with it." All you'd have to say is just kidding at the end of a post or sign yourself an aspiring rap artist. Added Alito, when Elonis threatened to shoot up a kindergarten, would the jury have to get into the mind of this obsessed, somewhat disturbed individual to figure out whether he really knew this would cause a panic on the part of school officials and parents? Answer - yes. Justice Alito, incredulous - yes? That's your answer? Answer - yes, exactly. It's the same thing the juries do all the time. Arguing the contrary position, Deputy Solicitor General Michael Dreeben contended that people like Elonis should be held accountable for the ordinary and natural meaning of the words they use in context. Chief Justice Roberts, the father of teenagers, asked if the reasonable person standard would also mean a reasonable teenager. What about an older audience, he asked? Would the person posting on Facebook have to know how rap lyrics are interpreted? Answer - yes. Reading some explicit Eminem lyrics about what the rapper would like to do to his ex-wife, Roberts asked whether those words would justify prosecution. No, replied the government's Dreeben, because Eminem's lyrics are said at a concert where people are going to be entertained. The critical context here is that Eminem didn't voice his lyrics privately, nor did his wife get a protection from abuse order. Justice Kagan, however, seemed to suggest that the government's position is too broad. We typically require a kind of buffer zone in First Amendment cases, she said, to make sure that even stuff that's wrongful maybe is permitted because we don't want to chill the right to speak freely. Replied Dreeben, the proof is in the pudding here. The rule of law applied in this case is used in most of the country, and there's no evidence anyone's speech has been chilled. At the end of the argument, the justices seemed like Goldilocks, still to be looking for a standard that is just right. Nina Totenberg, NPR News, Washington.
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