“Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?” – Anthony Elonis

The Supreme Court struck another blow for free speech Monday, ruling that threats made over the Internet are protected unless they are malevolent or reckless.

The decision was a temporary victory for Anthony Elonis and those like him whose threatening words on Facebook or similar social media sites may instill fear in their targets. But it was a defeat for the government and groups that defend victims of domestic violence.

Chief Justice John Roberts wrote the decision for a near-unanimous court. Justice Clarence Thomas dissented, and Justice Samuel Alito dissented in part.

Elonis was 27 and recently unemployed in Pennsylvania five years ago when he began posting threats against his estranged wife and others, from a generic kindergarten class to the FBI agents who came to his door. He was convicted on four counts of transmitting threats and sentenced to 44 months in prison. He completed his term a year ago.

The question that has split federal appeals courts is whether the threats must be intentional, or whether they are illegal just because a “reasonable person” — such as those on the receiving end — takes them seriously. Elonis was convicted under the latter standard; a majority of justices ruled that’s not sufficient.

Elonis might not be off the hook, however. The high court’s ruling means his case will be sent back to a lower court to determine whether he meant what he posted or, as he claimed, was just exercising his right to artistic expression. If the court rules that his posts were intentionally threatening, his conviction will stand.

The case represents a critical test of free speech in the Internet age, when words that seem threatening emanate from violent spouses and video game-players alike. The justices were seeking a rule that could result in locking up the former and letting the latter off the hook.

Elonis’ case offered a perfect test. After his wife, Tara, left him and took their two children, he lost his job at an Allentown, Pa., amusement park and began a series of dark posts containing explicit references to violence against his wife, coworkers, kindergartners, police and the FBI.

Sometimes, he imitated rap lyrics. Other times, he referred to his First Amendment rights. His lawyers said it was a form of therapy as well as art.

“Did you know that it’s illegal for me to say I want to kill my wife?” Elonis wrote in one of many posts. “It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say.”

The lengthy diatribe copied nearly word-for-word a satirical sketch by the Whitest Kids U’ Know comedy troupe, concluding with Elonis’ own summation: “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”

Read more: DFP

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