By Tony Mauro, From Supreme Court Brief

In their latest foray into new media, several U.S. Supreme Court justices on Monday appeared ready to consider angry Facebook rants as a form of expression that should be protected by the First Amendment.

But drawing the line between permissible speech and “true threats” that violate federal law seemed elusive for the court during oral arguments in Elonis v. United States.

Several justices expressed free speech concerns about the prosecution that resulted from Facebook postings by Anthony Elonis after his wife left him in 2010. Using violent language modeled after rap lyrics, Elonis wrote about killing his wife, shooting random school students and murdering an FBI agent who visited his home.

“There’s one way to love you but a thousand ways to kill you,” was one of Elonis’s tamer lines. Elonis said his writings were “therapeutic” and, like rap songs, were not intended to be taken literally.

A jury convicted Elonis under the federal law criminalizing threats of bodily harm, after being instructed to consider whether a “reasonable person” would consider Elonis’s postings as a threat—regardless of whether Elonis intended them that way.

In briefing the case, some groups supporting Elonis highlighted the rap music connection, a risky strategy aimed at imbuing his expression with First Amendment value. On Monday the strategy appeared to work before a court that has repeatedly issued rulings protecting unpopular expression ranging from animal crush videos to violent video games.

After Deputy Solicitor General Michal Dreeben said Elonis’s rants were “not something that has First Amendment value,” Chief Justice John Roberts Jr. read lines from Elonis’s brief about murdering a spouse that were similar to Elonis’s—but in fact were 1999 lyrics from an Eminem song.

Roberts asked whether those words could be prosecuted as a threat. Dreeben, who clearly recognized them as Eminem lyrics, did not walk into Roberts’ trap, responding that they could not form the basis of a prosecution because of the context.

“Because Eminem said it instead of someone else?” Roberts asked sharply, possibly foreshadowing a vote in favor of Elonis.

“Because Eminem said it at a concert where people are going to be entertained,” Dreeben responded without missing a beat. “This is a critical part of the context.” The exchange marked the first time ever that rapper Eminem was cited in a Supreme Court oral argument.

Justice Sonia Sotomayor also seemed concerned about the implications for free speech of endorsing the reasonable person standard. “We’ve been loathe to create more exceptions to the First Amendment,” she said.

Justice Elena Kagan pointed out that the standard advocated by the government was rarely used in the First Amendment context. “We typically say that the First Amendment requires a kind of a buffer zone to ensure that even stuff that is wrongful maybe is permitted because we don’t want to chill innocent behavior,” Kagan said.

But not all justices saw the government’s standard as a threat to free speech. John Elwood of Vinson & Elkins, who argued on behalf of Elonis, struggled to clarify the standard he advocated, emphasizing the need for the government to prove the speaker’s “subjective intent to place the listener in fear.” That standard, or something like it, would steer clear of punishing speech that should be protected, in Elwood’s view.

But Justice Ruth Bader Ginsburg asked pointedly, “How does one prove what’s in somebody else’s mind?” Elwood said police could search “a wealth of information” that could prove or disprove intent. He cited a recent Texas case in which someone on a video game chat room jokingly said he was going to “shoot up a kindergarten” but a viewer called police and the person responsible was jailed. The teenager is facing trial, but Elwood said Texas uses a “subjective intent” standard that will hopefully result in acquittal.

Several justices seemed worried that if the standard for proving a true threat was too difficult for prosecutors to meet, violators could dress up their threats as something else. “All he has to do is say either … it’s therapeutic, it’s a good thing I could do this, or it’s art,” Roberts said.

Justice Samuel Alito Jr. also said that ruling for Elonis could give others “a roadmap for threatening a spouse and getting away with it. You put it in rhyme and you put some stuff about the Internet on it, and you say, ‘I’m an aspiring rap artist.'”

IMAGE: Eminem

For more on this story go to: http://www.nationallawjournal.com/supremecourtbrief/id=1202677745466/High-Court-Weighs-Online-Speech-Protections#ixzz3KkIqiFNQ