BROOKE GLADSTONE: This week, the Supreme Court agreed to hear a case that could have a profound impact on how violent speech online is viewed in the eyes of the law. The case involves Anthony Elonis, a Pennsylvania man serving jail time for posting death threats against his wife on Facebook. Elonis said he didn’t mean it literally, and it’s up to the High Court to decide if that distinction matters. Dahlia Lithwick writes about the law for Slate, and she says the jury was given very clear instructions as to how to judge the Elonis case.

DAHLIA LITHWICK:  Generally, you know, all sorts of speech is protected, but the courts have always carved out this one little thing called true threats and said, hey, if you’re really truly threatening to hurt someone then it’s not protected speech. So what the jury was told is that the standard for whether it’s a true threat is whether a reasonable listener would objectively think that the statement is really a threat. And so, they sent him to jail for 44 months.

BROOKE GLADSTONE:  He wrote about smothering his wife with a pillow and dumping her body in a creek so it would look like rape. The text of another message read, “I'm not going to rest until your body is a mess soaked in blood.” Elonis always claimed that he never intended to carry out any of these threats, that he was writing rap lyrics and his free speech had been violated.

DAHLIA LITHWICK:  He just claims that this was therapeutic. He was deeply depressed. She had left him, taken their children. He is very, very clear that this was homage, you know, art and a tribute to Eminem. And his argument is, just to go back to the test that the court uses, that whether she objectively was afraid shouldn't be the determinant here. In his view and in the view of where he wants to push the law, the test should be his intent, not her experience of fear.

BROOKE GLADSTONE:  He did post some disclaimers among the writings, right, suggesting that this was more art than threat.

DAHLIA LITHWICK:  Right, at the same time that he was saying the things that he was saying about wanting to hurt her, he was also saying, “Art is about pushing limits,” quote, “I'm willing to go to jail for my constitutional rights. Are you?”

BROOKE GLADSTONE:  What is the Supreme Court being asked to decide?

DAHLIA LITHWICK:  They're being asked to clarify a test that they laid out, in a 2003 case, about cross burning and whether cross burning was unprotected speech because it constituted a true threat. The court said it was not a true threat. It was, in fact, protected speech. The one dissenter, by the way, was Clarence Thomas.

BROOKE GLADSTONE:  Right.

DAHLIA LITHWICK:  The 2003 decision, I think it's fair to say, is not completely clear, and I think the test determines the outcome. If you're going to ask people like Elonis, did you really mean to threaten to kill and rape her, the answer is probably gonna be no. Alternatively, he argues, and I think it's a very compelling argument as a First Amendment matter, he doesn’t want to be at the mercy of every single person who hears something he posts and takes it out of context. In other words, the internet changes everything because without being able to look in his eyes and know what he's saying and understand the context, everything can look like a threat. And are we really going to have to be subjected to the idea that the test is with someone alarmed?
BROOKE GLADSTONE:  But given recent events like the shooting in Isla Vista, where Elliot Rodger detailed his plans to murder people online, I’d have guessed there was a particular urgency around assessing intent, taking online threats seriously and grappling with the issue.

DAHLIA LITHWICK:  That's right, and, and one of the things that's interesting in the case is the Justice Department comes down on using the sort of reasonable listener standard. The Justice Department says, “We’re not going to take the word of the threatener; we’re going to try to protect people from the fear and terror [LAUGHS] of being threatened. And I think that there's a valence around this case that hasn't fully emerged yet in the media but is starting to emerge, where a lot of the women who reacted to Elliot Rodger are starting to talk about this case as a way of thinking through the issue of how do women experience threats online, and that this case, in a way, is as much a gender case as the cross burning case was a race case.

DAHLIA LITHWICK:  And on the side of the defense, the use of rap music, a cultural form and a milieu that the Supreme Court justices are not familiar with is going to constitute perhaps a, a racial argument on the other side.

DAHLIA LITHWICK:  Absolutely. I link in my piece to a really fabulous column in Forbes by three law professors who are defending Elonis, who say that it is a routine thing for people to be prosecuted and harassed, based on rap music. And so, I do think in a way the other thing that’s at issue in this case is that he was using an art form that is highly controversial and, arguably, [LAUGHS] using it in an artistic way, in a therapeutic way. And the idea that the Court’s going to get involved in whether, you know, that's legitimate or not further, I think, confounds this case.

BROOKE GLADSTONE:  So a bunch of principally old white male justices are going to be adjudicating an issue in which there are both gender and racial stakes. So what will be the outcome for the public, depending on how the Supreme Court comes down on subjective intent?

DAHLIA LITHWICK:  You know, it's either going to sweep in an enormous amount of protected speech which will be bad for the First Amendment. [LAUGHS]

  [BROOKE LAUGHS]

Or it's going to protect a lot of really awful hateful speech, which will be bad for listeners. But I think Justices Stephen Breyer, Sam Alito and Clarence Thomas have been waiting, in some sense, to dive into a case about how the internet changes everything. There is this burgeoning notion, among some of the justices, that you have some kind of right to be left alone. Both Alito and Justice Thomas have written really passionately about their fear that the internet makes us all very vulnerable to the craziest person who’s stalking us. And so, I think that may play out in interesting ways, in this particular challenge.

BROOKE GLADSTONE:  Dahlia, thank you very much.

DAHLIA LITHWICK:  Thank you for having me.

BROOKE GLADSTONE:  Dahlia Lithwick writes about the law and the courts for Slate.