Social media threats OK if intent is lacking

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. It’s one of the only sentences that I’m not allowed to say.

The Supreme Court struck another blow for free speech yesterday, ruling that threats made over the internet should include at least some measure of intent.

The decision was a temporary victory for Anthony Elonis and those like him whose threatening words on social media sites may instil fear in their targets. It was a defeat for the government and groups that defend victims of domestic violence.

Chief Justice John Roberts wrote the 8-1 decision for a nearunanimous court. It was based only on the court’s interpretation of a federal statute, rather than more broadly under the First Amendment.

The ruling also left open the possibility – indeed, perhaps even the likelihood – that Elonis will be found guilty under the tougher standard. While Roberts said ‘‘negligence is not sufficient to support a conviction’’, he made clear that the threat would be a crime if it was intended as a threat or if Elonis knew it would be viewed as one.

‘‘The jury was instructed that the government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error,’’ Roberts said. ‘‘Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.’’

Justice Clarence Thomas dissented, and Justice Samuel Alito dissented in part. Both would have said mere recklessness on Elonis’ part would be sufficient for conviction. Roberts left it up to the lower court to decide that question first.

‘‘The court’s disposition of this case is certain to cause confusion and serious problems,’’ Alito wrote. While he, too, would have reversed Elonis’ conviction and sent the case back for further review, he said the court should have defined what does and does not constitute a true threat.

‘‘The court declines to say,’’ he lamented. ‘‘Attorneys and judges are left to guess. This will have regrettable consequences.’’

Elonis was 27 and recently unemployed in Pennsylvania five years ago when he began posting threats against his estranged wife and others from a kindergarten class, and to FBI agents who came to his door. He was convicted on four counts of transmitting threats and jailed for 44 months. He completed his term a year ago.

The question that has split federal appeals courts is whether the threats must be intentional, or whether they are illegal just because a ‘‘reasonable person’’ – such as those on the receiving end – takes them seriously. Elonis was convicted under the latter standard but a majority of justices ruled that’s not sufficient.

Elonis might not be off the hook, however. The high court’s ruling means his case will be sent back to a lower court to determine whether he meant what he posted or was at least reckless in posting it. If the court rules that his posts were intentionally or recklessly threatening, his conviction would stand.

The case represents a critical test of free speech in the internet age, when words that seem threatening emanate from violent spouses and video game-players alike. The justices were seeking a rule that could result in locking up the former and letting off the latter. Elonis’ case offered a perfect test. After his wife, Tara, left him and took their two children, he lost his job and began a series of dark posts containing explicit references to violence against his wife, co-workers, kindergartners, police and the FBI.

Sometimes he imitated rap lyrics. Other times he referred to his First Amendment rights. His lawyers said it was a form of therapy as well as art.

‘‘Did you know that it’s illegal for me to say I want to kill my wife?’’ Elonis wrote in one of many posts. ‘‘It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say.’’ The lengthy diatribe copied nearly word for word a satirical sketch by The Whitest Kids U’ Know comedy troupe, concluding with Elonis’ own summation: ‘‘Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?’’

Elonis’ attorneys said he never intended to carry out his violent threats. On the internet, they said, context is lost and words can be misinterpreted.

The government said the standard used by lower courts – that Elonis’ words on Facebook could be viewed as threats by a reasonable person reading them – was sufficient, and his intent did not have to be proved.

‘‘Juries are fully capable of distinguishing between metaphorical expression of strong emotions and statements that have the clear sinister meaning of a threat,’’ its brief said. Rap music has thrived under the ‘‘reasonable person’’ standard, it noted, without ensnaring popular rappers such as Eminem.

The government was backed by groups such as the National Network to End Domestic Violence, which cited a survey of 759 victims’ service agencies that found nearly 90 per cent of them had cases of threats delivered via technology. Text messages were the most prevalent form, followed by social media and email. Women between the ages of 18 and 24 were the most frequent targets.

The Supreme Court has been a strong defender of free speech, going so far as to permit distasteful protests at military funerals and online videos depicting animal torture. But it also has drawn lines, ruling against the free speech rights of a previously convicted military protester and opponents of ex-president George W Bush who were moved from their protest site by the Secret Service.