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Supreme Court Weighs When Online Speech Becomes an Illegal Threat

Published: September 18, 2013
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Source: Wired

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.

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