When Do Creepy Facebook Messages Cross a Constitutional Line?

WASHINGTON — The last time the Supreme Court considered what the First Amendment has to say about threats, Chief Justice John G. Roberts Jr. found himself reciting lyrics from the rapper Eminem.

“Da­da make a nice bed for mommy at the bottom of the lake,” the chief justice said at a 2014 argument, quoting from “’97 Bonnie and Clyde” to make a point. He added: “There goes mama splashing in the water, no more fighting with dad.”

The moment was memorable, but the decision six months later was not. Chief Justice Roberts’s majority opinion overturned the conviction of an estranged husband who had harassed his wife with ugly Facebook posts in the form of rap lyrics. But the chief justice ducked the First Amendment question and delivered an opinion so cryptic that other justices complained.

In dissent, Justice Clarence Thomas wrote that the chief justice’s “failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.”

Almost a decade later, the court will soon have another chance to determine when creepy Facebook messages cross a constitutional line. It will hear arguments in April in a case arising from Billy Counterman’s fixation with a Colorado singer-songwriter identified in court papers as C.W. He sent her many messages on the social media platform, opening new accounts when she blocked him.

Some examples:

“Was that you in the white Jeep?”

“I’m currently unsupervised. I know, it freaks me out too, but the possibilities are endless.”

“You’re not being good for human relations. Die. Don’t need you.”

“Staying in cyber life is going to kill you. Come out for coffee. You have my number.”

Mr. Counterman was prosecuted under a Colorado law that made it a crime to send repeated communications that would cause a reasonable person to have serious emotional distress and did cause such harm. The law did not require proof that he intended to cause the distress. He was convicted and sentenced to four and a half years in prison.

When Chief Justice Roberts quoted Eminem in 2014, he suggested that the lyrics might be seen as threats made in a domestic dispute. “Could that be prosecuted?” he asked.

A government lawyer, Michael R. Dreeben, responded that context matters.

“Eminem said it at a concert where people are going to be entertained,” Mr. Dreeben said. “This is a critical part of the context. It wasn’t as if he stated it to her in private or on a Facebook page.”

Eric R. Olson, Colorado’s solicitor general, made a similar argument in urging the justices not to hear Mr. Counterman’s appeal. “A context-driven objective inquiry,” one that looks at the words in question, how they were conveyed and the response they elicited, he wrote, satisfies the First Amendment. The speaker’s subjective intent, Mr. Olson wrote, does not matter.

The First Amendment does not protect all speech. There are exceptions for libel, incitement, obscenity and fighting words, and one for “true threats,” which is at issue in Mr. Counterman’s case.

The Supreme Court has not been especially clear about what counts as a true threat. At the 2014 argument, Justice Anthony M. Kennedy said the term itself was unhelpful.

“I’m not sure that the court did either the law or the English language much of a good service when it said ‘true threat,’” he said. “It could mean so many things.”

The case itself included conflicting contextual clues. The defendant, Anthony Elonis, posted disturbing tirades laced with violent imagery after his wife left him.

He wrote that he would like to see a Halloween costume that included his wife’s “head on a stick.” He talked about “making a name for myself” with a school shooting, saying, “Hell hath no fury like a crazy man in a kindergarten class.” He fantasized about killing an F.B.I. agent.

But some of the posts contained disclaimers or indications that they aspired to be art or therapy.

Ducking the First Amendment question, the chief justice interpreted the law to require prosecutors to do more than prove that reasonable people would view Mr. Elonis’s statements as threats. Mr. Elonis’s state of mind mattered, too, the chief justice wrote, though he declined to say just where the legal line should be drawn.

In a concurring opinion in 2017, Justice Sonia Sotomayor urged her colleagues to find a case to “decide precisely what level of intent suffices under the First Amendment — a question we avoided two terms ago in Elonis.” The Counterman case appears to be that case.

The 2017 litigation concerned Robert Perez, who was, Justice Sotomayor wrote, “serving more than 15 years in a Florida prison for what may have been nothing more than a drunken joke.”

Mr. Perez and some friends had been drinking a mixture of vodka and grapefruit juice that he called a “Molly cocktail,” and they went to a liquor store for more supplies. In an apparent misunderstanding, a store clerk understood Mr. Perez to be discussing a Molotov cocktail. The group laughed, and Mr. Perez committed to the bit.

“The inebriated Perez continued the banter, telling another employee that he had only ‘one Molotov cocktail’ and could ‘blow the whole place up,’” Justice Sotomayor wrote.

Under Florida law, Mr. Perez’s intent did not matter. “Even as she argued for a 15-year sentence, the prosecutor acknowledged that Perez may have been ‘just a harmless drunk guy at the beach,’” Justice Sotomayor wrote.

The court’s precedents, she wrote, “strongly suggest that it is not enough that a reasonable person might have understood the words as a threat — a jury must find that the speaker actually intended to convey a threat.”

John P. Elwood, who represented Mr. Elonis and now represents Mr. Counterman, wrote in his petition seeking review that the First Amendment requires rigorous proof.

“The notion that one could commit a ‘speech crime’ by accident is chilling,” Mr. Elwood wrote. “Imprisoning a person for negligently misjudging how others would construe the speaker’s words would erode the breathing space that safeguards the free exchange of ideas.”