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The Supreme Court on Monday wrestled with the question of setting free speech limits online while hearing a case about a Pennsylvania man convicted of making rap-like threats on Facebook that he would kill his wife.
The man, Anthony Elonis, said he was joking, imitating rapper Eminem. His now ex-wife testified that she perceived it as a threat and was scared, nonetheless, and sought a protective order. The federal government argues her belief that it was a threat should be the test, while Elonis’ attorney says that is too limiting a standard because it may not be obvious in an online setting that the person is joking.
"You're frequently speaking to people without the context of tone of voice, body gestures, and frequently talking to people you don't even know in the physical world," said defense attorney John Elwood.
The justices seemed to struggle with where the line could be drawn between free speech and illegal threats.
“Shouldn't we allow some kind of buffer zone?” asked Justice Elena Kagan. “We don't want to chill innocent behavior.”
"How does one prove what's in somebody else's mind?" said Justice Ruth Bader Ginsburg, who had a c implanted to clear a blocked artery five days earlier.
In one of the posts, Elonis wrote: "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."
And when a female FBI agent later visited Elonis at home to ask him about the postings. Elonis took to Facebook again: "Little agent lady stood so close, took all the strength I had not to turn the b---- ghost. Pull my knife, flick my wrist and slit her throat."
Internet free speech groups decried the limits, while domestic violence advocacy groups said threats made on social media can be frightening.