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Justices Struggle Over When Violent Facebook Posts Become A Felony

At the Supreme Court, several justices appeared to be seeking a middle ground.

Posted on December 1, 2014, at 11:11 p.m. ET

Attorney John Elwood talks to reporters after arguing on behalf of Anthony Elonis at the Supreme Court on December 1, 2014.
Jonathan Ernst / Reuters

Attorney John Elwood talks to reporters after arguing on behalf of Anthony Elonis at the Supreme Court on December 1, 2014.

WASHINGTON — The Supreme Court heard a case Monday to determine the point at which violent or threatening posts on Facebook can lead to federal felony prosecutions, and whether, as Justice Samuel Alito put it, adding words like "just kidding, just kidding, laughing out loud" to the post could save a person from criminal charges.

The case revolves around whether Anthony Elonis's violent Facebook posts, which his wife took as threats and led one court to issue a protection order for her against Elonis, can be considered an interstate threat and therefore a federal crime.

The determination will come down to the law's requirement about Elonis's state of mind, which can fall into four legal categories: purpose, knowledge, recklessness, or negligence.

"Purpose" means that a person intends the action to have the effect in question, here, to threaten another person. "Knowledge" means that while the person may not have intended the threat, he was almost certain it would have that result. "Recklessness" goes a step lower, asserting that the person was aware there was a substantial risk the action would have that result. "Negligence," the lowest standard, does not require that the person was aware of the risk but instead simply requires that he should have known that there was a substantial risk that the action would have the result.

The question before the justices is, under the federal law in question, which of these states of mind would the government need to prove Elonis had when making such posts in order for it to be considered a felony.

The posts were unquestionably graphic and aggressive. At one point, for example, Elonis posted, stylized as lyrics: "There's one way to love ya but a thousand ways to kill ya, / And I'm not gonna rest until your body is a mess, / Soaked in blood and dying from all the little cuts, / Hurry up and die bitch so I can bust this nut, / All over your corpse from atop your shallow grave, I used to be a nice guy, then you became a slut, / I guess it's not your fault you liked your daddy raped you, / So hurry up and die, bitch, so I can forgive you."

The government argued that the lowest, "negligence," standard should apply, with the federal lawyer, Deputy Solicitor General Michael Dreeben, arguing the only requirement is that the speaker "know[s] ...­­ what the meaning of the words is that they speak."

Elonis's lawyer, John Elwood, had appeared to be arguing that the highest "intent" or "purpose" standard should apply, although he softened his position on Monday, stating at points that the court could set the slightly lower "knowledge" standard.

During the argument, the justices poked, as they often do, at the extreme consequences of both sides' arguments. At some points, the focus was on whether teenagers would be unfairly prosecuted under the government standard. Elwood pointed to a case in Texas that resulted from "a couple of teenagers in a chat room playing a game," where one made what his lawyers argue was a sarcastic threat to shoot up a school. The teen was arrested, held, and still faces prosecution even though neither the teen nor the other teen at whom he was directing the comment appeared to believe it was an actual threat.

On the other end of the equation, Justice Alito asked whether the standard Elwood pressed would create "a roadmap for threatening a spouse and getting away with it." A person could argue, Alito said, that his or her purpose wasn't to threaten someone if "you put it in rhyme and you put some stuff about the Internet on it and you say, I'm an aspiring rap artist." Elwood responded that, in that scenario, it would be a question for the jury to decide.

Most justices, however, appeared uncomfortable with either extreme. Justice Elena Kagan, describing the protections of the First Amendment, sought out some sort of "buffer zone" above the government's minimal standard to provide protection for speech that has value even if potentially seen by others as threatening. Justices Stephen Breyer and Sonia Sotomayor, in different ways, echoed that point. (Although the court has previously held that "true threats" aren't protected by the First Amendment, Justice Anthony Kennedy started off Monday's arguments by acknowledging the phrase is vague: "It could mean so many things.")

Chief Justice John Roberts, quoting lyrics from Eminem's "'97 Bonnie & Clyde," appeared to have a similar concern when he asked about a potential prosecution for violent lyrics. "'Da-­da make a nice bed for mommy at the bottom of the lake .... There goes mama splashing in the water, no more fighting with dad,' you know, all that stuff," Roberts said to the government's lawyer.

After an hour of arguments, it appeared the court was most likely to end up where neither of the lawyers began: somewhere in the middle.

What Were People Concerned About In Court On Monday:

Elonis' lawyer, Elwood, was concerned about teens:

The government lawyer, Dreeben, was concerned about the president:

Chief Justice Roberts was concerned about Eminem:

Justice Ginsburg was concerned about how the government would prove intent:

Justice Alito was concerned about spousal harassment:

Justice Scalia was concerned about whether the speech in question had much value at all:

Justice Kennedy was concerned about whether someone who repeats a threat made by someone else could be prosecuted under the government's standard, a concern shared by Justice Scalia:

Justice Breyer was concerned about intricate details and nuance and procedure — that could lead to a middle-ground solution for the court:

The government lawyer didn't actually agree with that, not completely, and other justices picked this point up as a potential middle ground.

The government lawyer didn't actually agree with that, not completely, and other justices picked this point up as a potential middle ground.

Justice Sotomayor was concerned about why the government had such an issue with Justice Breyer's argument:

Justice Kagan was concerned about the First Amendment — discussing the "buffer zone" protection that could be provided by a middle-ground decision:

Justice Thomas, as is his practice, did not discuss his concerns:

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