When a threat is criminal speech

When should threatening words be enough to land someone in jail? Is it only when the person genuinely intends to intimidate or harm someone else?

That’s what Anthony Elonis wants the U.S. Supreme Court to rule— but he may be asking too much even of the venerable First Amendment.

Elonis was convicted and sentenced to 44 months for a series of Internet posts in which he unloaded on his estranged wife, often in vile and brutal language. Among his gems: “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.”

Elonis insists he was “just an aspiring rapper”— Tone Dougie, if you want to know— whose vicious rants should be given the same protection as speech by any other rapping artist. But tell that to his estranged wife of the time.

“I felt like I was being stalked,” she testified. “I felt extremely afraid for mine and my children’s and my family’s lives.”

Elonis obviously must have known how his wife would interpret his threats. Shouldn’t that count in the legal calculus?

At oral arguments before the court this week, Justice Samuel Alito was understandably wary of making the state prove intent in every prosecution of a threat. “This sounds like a road map for threatening a spouse and getting away with it,” Alito said. “You put it in rhyme and ... you say, ‘I’m an aspiring rap artist.’ And so then you are free from prosecution.”

The difficulty for the court is where to draw the line. Many expressions of anger and rage directed at other individuals are not actual threats. They often amount to blowing off steam, and the fact that they can be posted these days on the Internet shouldn’t turn them into criminal acts. So the context of even apparently menacing speech matters very much.

When Elonis was tried, the judge told the jury that it could convict him if a “reasonable person” would consider his language “as a serious expression of an intention to inflict bodily injury or take the life of an individual.”

Justice Elena Kagan has signaled that she believes the trial court’s standard is not strong enough to guarantee longstanding principles of free speech, and she’s probably right. But the alternative standard sought by Elonis goes too far in the other direction.