The Internet has made communication both instant and inexpensive, but it's also made it easy for any idiotic utterance to reach a wide audience with the tap of a thumb. Many a person has lamented posting a snarky remark online, made regretful from personal reflection or, frequently, the ensuing backlash. (Note the forced resignation Monday of Elizabeth Lauten, the Republican congressional staffer who cruelly disparaged President Barack Obama's teen-age daughters on Facebook for their demeanor and appearance during last week's turkey pardoning ceremony.)

A case now being considered by the U.S. Supreme Court, Elonis v. United States, questions when such posts move from the realm of protected free speech, no matter how offensive, to an unprotected, criminal "true threat," an unfortunately ambiguous legal term. At issue is whether prosecutors should have to prove that an author intended to threaten or, as the government contends, whether they need only show that the writer meant to post the material and that it was done in such a context that a reasonable person could view it as a true threat.


First Amendment watchdogs have raised concerns that the government's position sets too low a threshold for finding a true threat and, if espoused by the justices, would have a chilling effect on freedom of expression online. But we're not convinced that either position, each argued before the high court Monday, matters much to the medium or to free speech as long as the context of the statement is considered when determining whether or not it's a true threat. Writing "I'm going to kill you" to an online game opponent is not the same as writing "I'm going to kill you" repeatedly in various forms to your estranged spouse.

The case before the court involves a 31-year-old Pennsylvania man, Anthony Elonis, who began posting violent statements about his wife on Facebook in 2010 after she left him, taking their two children with her. Mr. Elonis claims that his Internet rants were the artistic expression of an aspiring rapper and a therapeutic way to release some steam — á là Eminem apparently fantasizing in song about killing his ex-wife on 1999's "The Slim Shady LP."

"I'm not going to rest until your body is a mess/Soaked in blood and dying from all the little cuts," reads one of Mr. Elonis' posts. "Revenge is a dish that is best served cold with a delicious side of psychological torture," reads another.

His wife obtained a restraining order against him based on the statements, but that didn't stop Mr. Elonis, who wondered online whether the folded up document in her pocket would be "thick enough to stop a bullet." He followed up that post with one saying he was ready to "make a name" for himself with the "most heinous" school shooting ever, drawing the attention of the FBI. After a female agent visited him, he wrote "Little agent lady stood so close/Took all the strength I had not to turn the [expletive] ghost./Pull my knife, flick my wrist, and slit her throat."

He was arrested, convicted of transmitting threats over interstate commerce (the Internet) and sentenced to 44 months in prison. His attorney argues that the jury, which found Mr. Elonis guilty based on the government's standard, should have instead been instructed to consider whether he intended to threaten his wife, rather than, say, entertain, or whether he knew his posts were likely to be viewed as threatening.

Justice Samuel Alito said Monday that such a standard "soundslikea roadmapforthreateningaspouseandgettingawaywith it" by simply claiming artistic expression, a concern for domestic violence advocates. But it's not quite that simple. While it's difficult to know what's in someone's mind, we ask juries to do it all the time in determining the level of culpability in a crime — did the defendant accidentally run down the pedestrian, making it manslaughter, or purposely, making it murder? Context provides clues to intent. In the Elonis case, prosecutors had a strong argument that the content and public nature of his posts, along with his wife's expressed fear and restraining order, show his intent to frighten her.

Context is also key to the government's position. The United States did not — and would not, according to the government's lawyer — indict Eminem for his lyrics, recited Monday by Chief Justice John Roberts: "Da­da make a nice bed for mommy at the bottom of the lake."

We would urge the justices to require some combination of knowledge or intent on the perpetrator's part and the likelihood that a reasonable person would view the act as seriously threatening in interpreting federal law regarding true threats made online or anywhere else. A statement shouldn't get a pass automatically because it's made on the Internet, even though it has become a repository for much of the world's ugliest speech, or because someone follows it up with "LOL" or "JK."