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Supreme Court weighs in on whether violent posts on social media should send you to jail

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Much has been written about the seeming influx of violent, disturbing threats made on the likes of Facebook and Twitter. Cases like the seemingly never ending threats made to Anita Sarkeesian and those who support her, or the death threats that drove developer Brianna Wu from her home. Or the countless other daily threats of violence that often aren't covered.

But should threatening to kill someone online lead to prison time?

That's one of the questions in front of the U.S. Supreme Court this week as it weighs in on Elonis v. United States. In 2010, Anthony Elonis posted rants on Facebook saying he wanted to kill his estranged wife by smothering her with a pillow and that he wouldn't rest until her body was a "mess, soaked in blood and dying from all the little cuts," the LA Times reports. Elonis later threatened to kill an FBI agent who questioned him in connection with the posts and talked about killing everyone in a nearby Kindergarten class.

Elonis later said the threats, made using a pseudonym, were meant to be emulating Eminem. The jury found Elonis guilty of a federal law that makes it illegal to transmit via the phone or internet, any threat to injure another person.

The case bears some resemblance to the League of Legends player from New Braunfels, Texas who threatened to shoot up a kindergarten. He was later arrested and is still awaiting trial.

In the Elonis case, what the Supreme Court has to decide is when a comment made online is a "true threat" versus protected First Amendment speech.

And that doesn't seem very easy to do, Lyle Denniston with SCOTUS Blog reports.

"The Supreme Court showed on Monday that it is willing to consider holding people responsible for going online to 'shoot off their mouths,' as one lawyer put it, but the Justices seemed well short of knowing just how to do that," he writes. "An hour-long argument over crime via social media probed, with not much success, for a legal standard of proof to judge when a rant goes from being offensive to being threatening."

On the one side, the federal government wants a true threat to be based on whether a "reasonable person" would think it is one. On the other, Elonis' attorney wants a true threat to be defined as something written or said intentionally and knowingly as a threat.

You can, and should, read through Denniston's thoughtful analysis of this very important debate over on the SCOTUS Blog. The case certainly has a lot of people paying attention.

The attorneys for Justin Carter, the LoL player accused of making threats on Facebook, are keeping a close eye on the case, according to the San Antonio Express-News.

In both Elonis' case and Carter's, the suspects claim free speech and say they never would have acted upon their threats. The Express-News reports that Carter's attorney sees this as a landmark case.

Don Flanary, Carter's lead attorney, called the Elonis case potentially groundbreaking "because the Supreme Court is looking at how social media and the new norms of communication sit with historical first amendment laws."

"The internet has become a forum for free speech, just as much as the public square and radio and television," he said last week.

The results of the case could help shape how the U.S.'s current law considers free speech online and certainly could impact the current state of online harassment both in general and of those involved in the video game community.

In Cater's case, the New Braunfels court reset a pre-trial hearing on Nov. 24. It's set for a pre-trial evidentiary hearing on Jan. 8, according to court documents.