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US top court weighs if online death threats protected by free speech

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(GlobalPost/GlobalPost)

The US Supreme Court will consider a groundbreaking case Monday about whether death threats posted on Facebook are liable to prosecution or whether threatening comments are protected by consitutional rights to free speech.

It will be the first time the top court's nine justice -- who are not known to have Facebook accounts of their own -- will consider the limits of First Amendment protections on free speech on social media.

The case involves Anthony Elonis, a rap music enthusiast who posted angry lyrics on his Facebook page aimed at his wife after she left him, taking their two children.

"There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch," Elonis posted after the messy break-up ending seven years of marriage.

His wife told police she was "extremely scared" and obtained a "protection from abuse" (PFA) order forbidding Elonis from getting near her.

But that only provoked him further.

"Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet?" he wrote on Facebook, six months after their split.

His abusive language extended beyond his broken marriage. After an FBI agent visited him, he said he would blow the agent up, then threatened an amusement park he had been fired from and posted about shooting up nearby schools.

He said there were "enough elementary schools in a 10-mile radius to initiate the most heinous school shooting ever imagined."

Elonis even mused about laws against uttering death threats.

"Did you know that it's illegal for me to say 'I want to kill my wife?' It's illegal. It's indirect criminal contempt ... Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife," he wrote.

He was arrested and charged with communicating threats in interstate commerce, or the Internet.

- 'True threat' -

At trial, Elonis argued that he posted the messages "without a specific intent" to kill, and said writing the lyrics made him feel better after the split.

"This is therapeutic... it helped me to deal with the pain," he told the court.

But a jury did not agree, and Elonis was sentenced to three and a half years (44 months) in prison and three years of supervised release. An appeals court later upheld the conviction.

The case could have repercussions on violence and harassment on the Internet and how the First Amendment -- which protects freedom of speech -- applies in the realm of social media.

The Supreme Court will decide whether Elonis's comments constitute a "true threat," or were harmless because he did not intend to act on his words, as he argued.

US law defines threats as "statements that a reasonable person would interpret as a serious expression of intent to do harm."

The government argues that "a bomb threat that appears to be serious is equally harmful regardless of the speaker's private state of mind."

Several anti-domestic violence groups have weighed in with briefs in support of the government's position as the case goes before the top court.

Elonis, meanwhile, contends that his conviction would impact many artists, including singers, writers and cartoonists, who express themselves creatively.

- No ban on free speech-

The court has considered cases involving new technologies, including GPS, mobile phones and video games, but has never ruled on freedom of speech rights on social media.

It has also considered cases about violent video games, videos containing animal torture, and lies about receiving the Medal of Honor.

Law professor Steven Schwinn says that under the leadership of Chief Justice John Roberts, the court has consistently acted to protect the right to free expression.

"In each case, it struck the ban or restriction as infringing on First Amendment rights," said Schwinn, from John Marshall Law School.

"When it comes to these types of low-value -- even harmful -- speech, the Roberts court has been clear: if you don't like the speech, speak out against it; but government cannot ban it."

"Given this trend, it is hard to see how this court would rule against Elonis. Sure, Elonis's speech was especially contemptible. But so were the other forms of speech this court has upheld."

Law professor William Marshall from the University of North Carolina agrees that in previous cases the court has shown a commitment to protecting freedom of expression, even on the Internet.

The Supreme Court is "very pre-disposed to protect the First Amendment and free speech in modern media and the popular culture," Marshall said.

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