SCOTUSBlog's Amy Howe reports that, after oral argument in the U.S. Supreme Court today, there is no clear path for victory for Anthony Elonis or the federal government in a case testing the First Amendment boundaries of "true threats." At issue is whether Elonis' criminal liability for his violent, rap-like Facebook posts should be judged by whether he intended to place his ex-wife, an FBI agent and others in fear or if a reasonable person would perceive his posts as truly threatening.
Whether a subjective standard would actually protect more speech is an open question. In fact, Howe notes, "Justice Sonia Sotomayor was puzzled about whether there was actually any difference between the two standards. If you can infer someone’s state of mind from the circumstances 'of how and what was said in words,' she asked, isn’t the jury really looking at what a reasonable person would think anyway?"
Chief Justice John Roberts asked if the government's standard might result in prosecutions for violent rap lyrics and "did not appear" satisfied by the government's answer that rap artists wouldn't face prosecution because they are in the business of entertainment, Rowe further reports.
Justice Elena Kagan suggested a middle ground of a recklessness standard.
Lawyer and Legal Journalist
