

The Supreme Court is being asked to decide when an online threat becomes worthy of prosecution, in what could be the first internet speech case to reach the high court’s docket for the 2013-2104 term beginning next month.

The justices are weighing whether to review the prosecution of an Iraq war veteran handed 18 months (.pdf) in prison for singing in a 2010 YouTube video that he would kill a local Tennessee judge if the judge did not grant him visitation rights to his young daughter.

“We think its potentially quite a significant case. People say things in the online world that they don’t mean seriously,” said the veteran’s attorney, Chris Rothfeld. “Second, it’s difficult to tell in the online world how a statement is intended. People say things and write things and they are read in an entirely different context.”

The case comes at a time when it has become routine for adults and juveniles to be prosecuted in federal and state court for their threatening online speech.

Rothfeld maintains that the federal threats law — which dates to a 1932 statute making extortion illegal and applies to the offline world as well — is unconstitutional. A felony conviction, he said, is based on whether a “reasonable person” would believe the threatening statement was made with the intent to inflict bodily injury and was uttered to achieve some goal through intimidation.

Rothfeld argues that what should matter is whether the person making the threat was serious, not whether a “reasonable person” would conclude he or she was.

“Whose state of mind do you look at? We say you must look at the state of the mind of the speaker,” he said.

In his eight-minute YouTube video, defendant Franklin Jeffries strummed a guitar while singing a song of revenge.

“And when I come to court this better be the last time. I’m not kidding at all, I’m making this video public. ‘Cause if I have to kill a judge or a lawyer or a woman I don’t care,” Jeffries chants on the video.

“Take my child and I’ll take your life,” the song continues.

Rofthfeld said his client was an Iraq war veteran suffering post traumatic stress disorder and never intended to carry out his words.

“He was encouraged by psychologists to vent in song,” he said.

Of eight circuit courts of appeal to decide the issue, only the San Francisco-based 9th U.S. Circuit Court of Appeals has chosen to view the law the in line with Rothfeld’s interpretation. When there is a split in circuits, that’s usually when the high court intervenes to assure conformity across the country.

“Although some disagreement exists among the courts of appeals on the question whether proof of a true threat requires proof of a subjective intent to threaten, review of that question is not warranted because the circuit split is shallow and may resolve itself without this Court’s intervention and because any error was harmless,” the government wrote the justices while urging them to reject the case.

The justices are to meet in private September 30 to discuss whether they will review the case.

The Obama administration argued in a brief to the justices that the law is designed to protect individuals from fearing violence, regardless of whether the person who made the threat actually meant it.

The Solicitor General’s office wrote, “requiring proof of a subjective intent to threaten would undermine one of the central purposes of prohibiting threats.”