Can You Make Death Threats on Facebook? The Supreme Court Will Decide

​Here's a riddle: When is a threat not a threat? When it's written like a rap lyric? What if it's in a vague Facebook status? How about when the threatener wasn't actually trying to frighten the person being threatened?

The Supreme Court will weigh these questions today as it ​hears arguments about what is needed for conviction when a person makes a threat online. The case at hand concerns Anthony Elonis, a Pennsylvania man who was convicted of making threats against his ex-wife and an FBI agent after he posted fantasies about killing them on his Facebook page.

Elonis was convicted of transmitting a thr​eat in interstate commerce (as in, over the internet) and sentenced to 44 months in prison under the interpretation that threats (made online or elsewhere) are illegal if "a reasona​ble person" would perceive them as a serious expression of an intent to harm. The jury on his case evidently thought this was true of Elonis's threats, but this isn't the only interpretation of the law.

Elonis's lawyers have appealed it up to the Supreme Court under the interpretation that a jury has to believe Elonis intended for the threat to frighten his ex-wife and wasn't just venting. There have been ​precedent-setting cases under both interpretations, which is why an ultimate ruling by the court is needed.

But even if the Supreme Court rules in their favor, Elonis's conviction could stand if a jury believes that the threats he made were intended to freak out his ex.

It wouldn't be a huge stretch. Docu​ments from a 2013 appeal case that upheld Elonis's conviction include transcriptions of the statements he posted online. These varied from vague musings about how he would kill an unnamed individual:

"If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder."

To more explicit, like this post —a riff on ​a sketch by comedy group The Whitest Kids You Know—shortly after Elonis's ex-wife was granted a restraining order against him:

Did you know that it's illegal for me to say I

want to kill my wife?

This post escalates into a description of the perfect spot where someone could fire a mortar launcher through his ex's window:

I also found out that it's incredibly illegal,

extremely illegal, to go on Facebook and say

something like the best place to fire a mortar

launcher at her house would be from the

cornfield behind it because of easy access to a

getaway road and you'd have a clear line of

sight through the sun room.

Insanely illegal.

Ridiculously, wrecklessly, insanely illegal.

Yet even more illegal to show an illustrated

diagram.

===[ __ ] =====house

: : : : : : : ^ : : : : : : : : : : : :cornfield

: : : : : : : : : : : : : : : : : : : :

: : : : : : : : : : : : : : : : : : : :

: : : : : : : : : : : : : : : : : : : :

######################getaway road

Elonis's conviction came after he posted threats about a school shooting and was visited by the FBI. This prompted Elonis to post this:

You know your shit's ridiculous

when you have the FBI knockin' at yo' door

Little Agent Lady stood so close

Took all the strength I had not to turn the bitch ghost

Pull my knife, flick my wrist, and slit her throat

Leave her bleedin' from her jugular in the arms of her partner

But his lawyers argue Elonis didn't intend for the posts to actually be threatening. They liken the verses to Eminem lyrics and point out other posts where Elonis writes that the thoughts shared aren't to be taken seriously, that he's "just venting."

After hearing today's arguments, the Supreme Court will deliberate and eventually come back with a ruling that will set the precedent for how juries decide which threats are illegal and which are allowed.

Under the still-looming sha​dow of GamerGate, which has brought to light hundreds death and rape threats made against women online, the court's decision will have a heavy impact.