When Does the First Amendment Protect Threats?

Many people don't know where courts draw the line on what constitutes free speechor what they mean by a "true threat."

In a 2003 case, the Supreme Court ruled that Ku Klux Klan burnings are sometimes but not always protected speech. (Rainier Ehrhardt/Reuters)

Not long ago, a dissatisfied reader emailed that he had enough guns to stop people like me. I emailed back to ask whether he was threatening me.

The reply: I'm not stupid enough to telegraph genuine ill intent.

On Monday, the Supreme Court will hear a case involving the question of when a seemingly threatening communication (this one on Facebook, not email) can be a crime. Lets clear up some confusion, shared by my correspondent above, about what threats are and why they can be punished.

The case is Elonis v. United States. Anthony Elonis lived in Lower Saucony Township, Pennsylvania. Until 2010, he was married with two children and worked at a nearby theme park. In May 2010, his wife left him, taking their two children. Not long after that, he was fired because of multiple complaints of on-the-job sexual harassment (for example, a female coworker alleged that he found her alone in the office at night and began to undress).

He turned to Facebook. About his former coworkers, he posted: I have sinister plans for all my friends and must have taken home a couple [of keys]. About his ex-wife, he posted: Im not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. When she got a restraining order, he posted, Ive got enough explosives to take care of the state police and the sheriff's department and Im checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined ... The only question is ... which one? FBI agents came to his door; he posted his fantasy of killing one female agent: Pull my knife, flick my wrist, and slit her throat Leave her bleedin from her jugular in the arms of her partner. He was convicted in federal district court of five counts of transmitting in interstate commerce (here, the Internet) any threat to injure the person of another.

Free Speech Isn't Free

Elonis argued that, under the First Amendment, the government had to prove that he had a subjective intent to threaten. He said he lacked that, in part because some of his posts echoed words by rapper Eminem. The court of appeals held instead that the statute only requires that a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm.

Lets break that down carefully. Elonis argues that the government must prove beyond a reasonable doubt that he was actually thinking, This message will terrify the person it refers too, and I want that. The government says that it must only prove that a reasonable person would have thought it would terrify.

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When Does the First Amendment Protect Threats?