Messages posted on Facebook and Twitter or sent in emails can be tasteless, vulgar and even disturbing.
But when do they cross the line from free speech to threats that can be punished as a crime?
As the internet and social networks allow people to vent their frustrations with the click of a mouse, the US Supreme Court is being asked to clarify the First Amendment rights of people who use violent or threatening language on electronic media where the speaker’s intent is not always clear.
The First Amendment of the US Constitution guarantees freedom of speech and other basic rights.
The justices could decide as early as Monday whether to hear appeals in two cases where 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 said she was planning “something big” at a government building or school. The US Constitution’s Second Amendment guarantees the right to bear arms.
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 a 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.”
Most lower courts say determining a true threat depends on how an objective person would understand the message. But lawyers for the defendants, along with some free-speech groups, say it should depend on the speaker’s state of mind.
They say the rise of new forms of social media and the freedom of political discourse can lead people to misinterpret comments that are colourful political tirades or coarse rap lyrics not meant to threaten harm.
The wife of the Pennsylvania man, Anthony Elonis, testified at his trial that the postings made her fear for her life.
One post about his wife said, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
Elonis says he never meant to carry out the threats. He claims he was depressed and made the online posts in the form of rap lyrics as a way to vent his frustration after his wife left him.
Samuel Randall, lawyer for Ellisa Martinez in the Florida case, said his client was attempting to make a mocking political point about the dangers of gun violence when she emailed the radio station.
He said Martinez never intended to cause such a big problem or harm anyone.