The U.S. Supreme Court will review the true-threat exception to freedom of speech when it considers the case of Anthony Douglas Elonis, a Berks County, Pennsylvania man who threatened his estranged wife, former co-workers and police through posts on his Facebook page, reported The Legal Intelligencer.
The high court carved out an exception to the constitutional protection of free speech for threatening language, but it never clearly defined the bounds of that exception.
So the question for the Supreme Court is whether someone can be convicted for making threats based on a reasonable person's understanding of the language as threatening or if the conviction must be based on the speaker's subjective intent to threaten.
When it ruled in September, the U.S. Court of Appeals for the Third Circuit followed the lead of most circuits that have ruled on the issue—with the exception of the Ninth Circuit—and declined to interpret a 2003 opinion from the U.S. Supreme Court as requiring subjective intent from the speaker in order to trigger the true-threat exception to the First Amendment's protection of speech.
The understanding of the speech as a threat to a reasonable person is to be weighed, rather than the intent of the speaker to threaten, under the Third Circuit's standard.
The high court framed the question this way: "Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a 'reasonable person' would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort."
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