The inevitable has happened: A case involving Facebook has made it to the U.S. Supreme Court. Elonis v. United States presents an issue that has divided lower courts: What is a “true threat,” and does it amount to speech that is unprotected by the First Amendment? The case will be argued Monday, Dec. 1.
The Supreme Court long has said that “true threats” may be constitutionally punished, but it has not attempted to define the phrase. Social media, like Facebook, have caused the issue to arise with greater frequency. Ultimately, the issue in Elonis is whether a person can be convicted of making true threats if a reasonable person would have perceived the statements as threatening, or whether there must be proof that the speaker subjectively intended to threaten others.
Chemerinsky: What is a ‘true threat’ on Facebook? SCOTUS to decide