By The Associated Press
Published: Saturday, June 7, 2014, 7:30 p.m.
WASHINGTON — Messages posted on Facebook and Twitter or sent in emails can be tasteless, vulgar and even disturbing.
But just when do they cross the line from free speech to threats that can be punished as a crime?
The justices could decide as early as Monday whether to hear appeals in two cases in which defendants were convicted and sent to jail for making illegal threats, despite their claims that they never meant any harm.
In one case, a Pennsylvania man ranted on Facebook in the form of rap lyrics about killing his estranged wife, blowing up an amusement park, slitting the throat of an FBI agent and committing “the most heinous school shooting ever imagined.”
The other case involves a Florida woman who emailed a conservative radio talk show host about “second amendment gun rights” and wrote that she was planning “something big” at a Broward County government building or school.
“I'm going to walk in and teach all the government hacks working there what the 2nd Amendment is all about,” the email read. Her comments triggered a lockdown affecting more than a quarter-million students.
In both cases, the defendants were prosecuted under a federal statute that makes it crime to transmit a “threat to injure the person of another.” Those laws apply only to “true threats” that are not protected by the First Amendment under a doctrine established by the Supreme Court in 1969. The high court has said laws prohibiting threats must not infringe on constitutionally protected speech that includes “political hyperbole” or “vehement,” “caustic,” or “unpleasantly sharp attacks” that fall shy of true threats.
Those who support a subjective standard say the threat law should be governed by the Supreme Court's 2003 ruling in Virginia v. Black. In that case, the court invalidated Virginia's law against cross burning because it did not include a crucial component: whether the Ku Klux Klan intended to intimidate someone by burning the cross.
The Obama administration says the cross-burning case does not require a specific intent to threaten. In its brief to the court, Justice Department attorneys say requiring proof of a subjective threat would undermine the law's purpose.
The wife of the Bethlehem, Pa., man, Anthony Elonis, testified at his trial that the postings made her fear for her life. FBI agents visited Elonis at home after the amusement park that fired him contacted law enforcement officials about his posts.