The ease of communication provided by social media like Facebook and Twitter is not always a good thing, especially when those sites are used to promote spousal abuse by posting threatening messages.

The Supreme Court will hear arguments in a case next week that examines the difference between protected speech and harmful threats.

“Freedom of speech” is a broad term used to protect many forms of expression in the United States: art, music, newsprint, film, and just about anything else.

But there are limits to what the First Amendment allows. Threatening speech – specifically threats that would not be ignored by a reasonable person – is not protected by the First Amendment.

The problem is it can be hard to tell which threats are serious online and which are not.

The Case

Shortly after Tara Elonis was granted a Protection From Abuse (PFA) order against her husband, Anthony Elonis, she saw him post this message to Facebook: “Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet?”

His threats were worded in a prose rap style similar to rap musicians like Eminem, who himself has been the subject of controversy over his violent lyrics about women, especially his ex-wife, Kim.

Elonis made other threats in his “lyrics” against his former co-workers, local schools, and even an FBI agent sent to investigate his threats. The original court case disregarded his threats against his co-workers, but the threats against children, his wife, and the FBI agent were treated as serious.

Elonis ended up spending three years in jail for his threats.

True threat or blowing off steam?

The issue in question is whether Anthony Elonis’s threats could be considered real by a reasonable person or if they were clearly exaggerated expression.

His attorney, John Elwood, argued that the only difference between his client’s Facebook posts and Eminem’s rap lyrics is the rapper’s fame. According to Elwood, if Eminem “were still playing 250-seat gyms,” he would be indistinguishable from Elonis.

He argues that internet conversations lack social cues like body language and tone of voice to indicate that a threat is “serious or joking.”

Elwood noted that one of Elonis’s threats was “followed by an emoticon of a face with its tongue sticking out to indicate ‘jest.’”