The US Supreme Court will assess whether online abuse and threats are expressions of free speech or criminal activity.

online-threatsWhen do abusive comments made on social media cross the line between a joke and an actual threat of danger? That’s what the US Supreme Court is deliberating in light of a case brought by Anthony Elonis, a man convicted in 2011 for posting threats to murder his wife, shoot children, and slit an FBI agent’s throat on Facebook.

Although two lower courts have upheld Elonis’ conviction, the Supreme Court is now being asked to consider whether Elonis’ mindset at the time of writing the threats is relevant, given that a “reasonable person” would take the threats seriously.

On Monday, December 1st, the Supreme Court heard from civil liberty groups, anti-abortionists, and scholars regarding the case of Anthony Elonis, who made graphic threats to his wife’s life on Facebook. His lawyers assert that Elonis, who posted under the pseudonym Tone Dougie, never posed any physical danger and that his online comments did not equate to a threat of real-life violence. Elonis’ 2011 threats and subsequent conviction raise important questions about how courts should treat online abuse in the digital era.

Further complicating the situation, Elonis referenced his comments on Facebook as “art” and believed the use of smiley faces alongside some of the threats indicated that they should not be taken seriously. “Did you know that it’s illegal for me to say I want to kill my wife?” wrote Elonis in one of his many Facebook posts. “It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say.”

Despite Elonis’ claim that First Amendment Rights protect his freedom of speech online and his lawyers’ insistence that no real harm was done, many victims’ rights groups believe that the threat of violence is harmful in and of itself.

The Supreme Court’s upcoming decision could redefine how online threats of violence are handled by the US legal system. The justices will discuss and determine if and how they should redefine “subjective” and “objective” intents in cases of online threats of violence.