Both parties in the high-profile Elonis vs. United States had their day before the Supreme Court yesterday, and lawyers and analysts alike aren’t sure what to make of the Court’s reaction to oral arguments.

Elonis (described in detail here) is shaping up to be a real barn burner because it tackles a question almost all of us have asked ourselves at some point: can you SAY that on Facebook?

“That” being, of course, profanity- and violence-saturated rants directed at a particular person or group of people.

We don’t have a cohesive standard for what constitutes a “true threat” against another person, and the murky waters of social media have added an extra layer into an already complicated case. Platforms like Facebook and Twitter provide a kind of semi-anonymous catharsis for users; you can post a picture, or a song lyric, or random thought, and (barring any run-ins with the platform’s TOS) no one can find cause to complain because it’s your space on the internet to use as you wish.

Enter Elonis’ pointed, violent rants.

Is it enough to claim catharsis and artistic expression when your content is clearly aimed at another person, and that person feels threatened? Elonis’ attorneys are banking on the Nine to accept this argument:

John Elwood, a lawyer for Mr. Elonis, said prosecutors should have to show that someone accused of making threats intended to put the listener in fear. Merely being reckless with comments on Facebook or elsewhere shouldn’t be enough to make someone guilty, he said.

“Many of the people who are being prosecuted now are teenagers who are essentially shooting off their mouths or making sort of ill-timed, sarcastic comments which wind up getting them thrown in jail,” Mr. Elwood said.

He cited a Texas prosecution of a teenager who made remarks in a videogame chat room about attacking a school. And he suggested the government’s preferred legal approach would allow the prosecution of someone from Ferguson who tweeted a violent message along with a picture of police officers during the riots.

Justices Alito and Ginsburg balked at this argument, with Alito citing concerns that condoning Elonis’ conduct could lead to a situation where estranged spouses could post threatening content against their partner and get away with it, and Ginsburg asking how a prosecutor could somehow tease out what was in the perpetrator’s mind when he posted the threatening content.

Kagan, however, took issue with the government’s position that statements could be incriminating if the speaker “should have known” that the speech could make someone feel threatened, and proposed an alternate, “recklessness” standard; Breyer seemed to want to throw both parties under the bus and craft his own rule; Roberts quoted an Eminem song (IT HAPPENED, PEOPLE!) and wanted to know whether or not the ruling the government wants could lead to rap stars being prosecuted for violent lyrics.

My hope is that the chattering classes don’t get bogged down in the situational awfulness of Elonis’ words, or the estranged nature of his relationship with his ex-wife. By all accounts, it seems like the Court doesn’t like what happened in this case, but is also extremely hesitant to play games with free speech. This is a case about standards, and that standard by all rights should precede the case-by-case-type analysis that happens in the battle between free speech and true threats. The only question that needs answering here is, must a prosecutor in all circumstances prove that the speaker intended to threaten with his words? Or, is the objective “reasonable person” standard enough to protect both potential victims and the First Amendment?

I’ve written previously about the danger of using the “reasonable person” standard to place another limit on our Constitutional rights, and I think that there’s a good argument to be made that relying on the perception of someone who is already in the middle of a potentially volatile situation is a lower standard than the First Amendment deserves to be judged by.

We don’t expect the court to hand down its decision until June at the earliest.

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