On December 1st, the Supreme Court will hear oral arguments in Elonis v. United States, the first case about online threats to reach the highest level of judicial review. It’s a timely case, coinciding with increased attention around the online harassment of women—from Caroline Criado-Perez to Zoë Quinn and the other women targeted by Gamergate. The case has the potential to broadly change what kind of online speech can be prosecuted.

The case centers on Anthony Elonis, who was convicted after writing graphic, gory fantasies about mutilating and killing his wife and other women and posting them to Facebook. The issue before the Supreme Court is whether "a true threat" requires finding that the threatener subjectively intended to be threatening. Elonis is arguing for a subjective intent requirement, claiming that his posts were meant as rap lyrics and not as threats, while the prosecutors are arguing for an "objective" standard—a threat counts as a threat if a "reasonable person" would think the statement is a threat.

Who is the "reasonable person"?

The government is arguing that it’s enough to use an objective standard, with an exception for "idle or careless talk, exaggeration, something said in a joking manner or an outburst of transitory anger." However, when it comes to the Internet, where context or tone may be more difficult to perceive, this objective standard has obvious drawbacks: is the "reasonable person" going to be a teenager who plays League of Legends or a grandfather posting on a fly fishing forum?

Some fear that if the Supreme Court takes the government’s side in Elonis, it could open the door to a flood of prosecutions over careless Internet postings. See, for example, the League of Legends player who "threatened" to shoot up a kindergarten (allegedly followed by a "J/K" and "LOL"). The person who reported the post read it in a different context from the League of Legends players who regularly hurl abusive language at each other. It’s not hard to imagine this becoming a regular occurrence if an objective standard is applied to the Internet. And in this particular case, it’s hard to see a downside if the Supreme Court goes in the opposite direction—a subjective intent requirement is not in itself a significant setback in protecting Internet users against dangerous people online.

It could open the door to a flood of prosecutions over careless Internet postings

Elonis v. United States shows a stark division between the US and Europe when it comes to speech. In general, European countries have broader prohibitions against speech, particularly when it comes to hate speech. Three people were recently jailed in the UK for online harassment under a law that forbids electronic messages that are "grossly offensive or of an indecent, obscene, or menacing character," and the British Parliament is currently considering harsher penalties.

In the United States, the Supreme Court has interpreted the First Amendment to stop similar European-style prohibitions on hate speech, in cases like R.A.V. v. City of St. Paul (1992) and Virginia v. Black (2003). In R.A.V., the court overturned a conviction for burning a cross on an African-American family’s lawn, on First Amendment grounds. In Virginia v. Black, again, a conviction for cross-burning was overturned. But Virginia v. Black was written in a confusing, meandering way with concurrences that split off in many directions. Although the Supreme Court held that the mere act of a burning a cross was not always evidence of a threat, the court also found that cross-burning could be restricted if it was done "with the intent to intimidate." The context was key.

"This is the standard with virtually every other crime: whether the defendant intended to cause harm."

In a way, Virginia v. Black makes perfect sense. Madonna’s music video for "Like A Prayer" is clearly not a threat against anyone. At the same time, if someone wearing a white gown with a pointed hood burns a cross on the lawn of an African-American family, it’s fairly obvious that that is a threat. A law that doesn’t allow room to distinguish between those two cases shouldn’t be constitutionally permissible. But the way Virginia v. Black was written wasn’t clear enough for judges in the lower courts. In particular, the court didn’t issue a clear definition of a "true threat." (The decision describes true threats as "forms of intimidation that are most likely to inspire fear of bodily harm.") This was vague enough that different judicial interpretations popped up across the country—hence, Elonis being heard before the Supreme Court.

Online threats run afoul of the law against "transmitting in interstate commerce communications containing threats to injure another person." Lower courts have split on whether to apply the objective standard, or to require subjective intent. The objective standard resembles legal standards for civil tort liability—so for example, a corporation doesn’t have to intend to cause an oil spill before it can be sued in court. In contrast, the interpretation requiring "subjective" intent more closely resembles traditional legal standards in the criminal law, a point the American Civil Liberties Union repeatedly makes in its brief to the Supreme Court. Lee Rowland, an attorney with the ACLU, emphasized, "This is the standard with virtually every other crime: whether the defendant intended to cause harm. If you really think that there’s a fire in a theater, and you yell fire, you haven’t committed a crime, even if there’s no fire."

It’s important to note that the "subjective intent" at issue isn’t a question of whether Elonis actually intended to cut his wife until her "body is a mess, soaked in blood and dying," it’s whether Elonis intended to make his wife afraid. And finding subjective intent isn’t a matter of reading a defendant’s mind or going through his diary. As with the cross-burning cases, the context is what the jury must look to. And here, the context is fairly damning.

As with the cross-burning cases, the context is what the jury must look to. And here, the context is fairly damning.

In 2010, Anthony Elonis’ wife left him and took the children. Almost immediately he began acting erratically. After a fellow employee filed multiple sexual harassment complaints against him, he posted a vague threat against her on Facebook, resulting in him getting fired the very same day. From there, things only got worse. He made creepy Facebook comments about his children and his wife and then began to write long, bizarre rap songs as Facebook posts.

His wife testified at trial that during their marriage, Elonis rarely listened to rap music, and had certainly never shown any interest in writing rap lyrics. Elonis claimed to find inspiration in Eminem’s "Guilty Conscience," "Kill You, Criminal," and "97 Bonnie and Clyde." The resemblance to Eminem’s music is there, though maybe only insofar as the songs are all about violently murdering his wife.

His posts often referenced the First Amendment and free speech, graphically describing the mutilation and murder of his wife while gleefully claiming it was all only a joke. In response to his wife acquiring a protection-from-abuse order, he wrote, "Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet?" At the end of that post, he linked out to the Wikipedia article for "Freedom of Speech."

About a month after he had been fired from his job, Elonis posted:

I’m checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a kindergarten class The only question is . . . which one?

It was still two years prior to Sandy Hook, but regardless, the FBI showed up at Elonis’ door. When he answered, he politely asked if he was free to go. They confirmed that he was, and he closed the door on them. Shortly afterwards, he posted on his Facebook:

You know your shit’s ridiculous When you have the FBI knockin’ at yo door Little Agent Lady stood so close Took at the strength I had not to the turn the bitch ghost Pull my knife, flick my wrist, and slit her throat Leave her bleedin’ from her jugular in the arms of her partner

At this point, Elonis was arrested and charged with "transmitting in interstate commerce communications containing threats to injure another person," and ultimately convicted by a jury.

His posts graphically described the murder of his wife while gleefully claiming it was all only a joke

The facts of Elonis are fascinating as a cultural marker. The same defenses implied in his posts— "I’m just joking" and "it’s free speech"—have become tired tropes in debates about sexism online. Even though Elonis is less about faceless trolls attacking female public figures and more about intimate partner violence, it’s easy to look at the case and see similarities to the experiences of Anita Sarkeesian, Zoë Quinn, Adria Richards, Kathy Sierra, and others. (And it’s also important to remember that the abuse of Quinn cannot be separated from intimate partner violence, as it was instigated by an angry ex-boyfriend).

Adoption of the objective test might, at a cursory glance, seem like a boon to anti-harassment advocates, since it gives greater leeway to law enforcement. But the point of view of the "reasonable person," not the subjective intent requirement, has been the real stumbling block in getting the law to take violence against women seriously. Whether it’s with respect to Internet harassment, stalking, or intimate partner violence, "objective" standards have leaned away from reading malice or danger in abusers’ actions, even when victims are both fearful and in the best position to know their own abusers’ minds.

The cultural change precipitated by these events will change how either test is applied

But high-profile incidents like the ongoing Gamergate controversy are changing how we as a society understand cases like Elonis. From the Hollaback catcalling video to the Santa Barbara spree killings, something is shifting about the public perception of the systemic disadvantages and dangers that women face. Are catcalls really complimentary? Are forum posts about hating women really harmless, empty rantings? What counts as dangerous? What counts as "not real"? And is all of this connected? In the words of one of Anita Sarkeesian’s detractors, "My biggest problem with Anita, is that if I used her logic, I would see sexism everywhere."

"I will say one thing about the Internet—it’s really transformative," says Soraya Chemaly, a media critic who frequently writes about gender. "It’s really brought these issues into people’s lives. [The Internet has] pulled away the curtain, and it’s made it easier for us to say: ‘This happens all the time. This is what women are living with in their homes, or on their computer, or in the classroom, or on the street.’ And we’ve never been able to do that before. It’s really a powerful thing."

As jury boxes begin to fill with men and women who have witnessed online harassment against their friends, or have seen the studies, or read the newspaper articles, they will bring that context with them. Just as the context of American history informs a jury on when a cross-burning is a threat, the awareness that one-third of all female homicides are committed by their intimate partners will inform a jury on how to understand the subjective intent behind a Facebook post by an estranged husband. Either possible decision in Elonis can’t and won’t solve the high-profile online harassment documented in the media. But the cultural change precipitated by these events will change how the test—whichever one the Court settles on—is applied in practice.