When does the First Amendment protect threats?

About his former coworkers, he posted: “I have sinister plans for all my friends and must have taken home a couple [of keys].” About his ex-wife, he posted: “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” When she got a restraining order, he posted, “I’ve got enough explosives to take care of the state police and the sheriff’s department” and “I’m checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined … The only question is … which one?” FBI agents came to his door; he posted his fantasy of killing one female agent: “Pull my knife, flick my wrist, and slit her throat Leave her bleedin’ from her jugular in the arms of her partner.” He was convicted in federal district court of five counts of transmitting in interstate commerce (here, the Internet) “any threat to injure the person of another.”

Elonis argued that, under the First Amendment, the government had to prove that he had a “subjective” intent to threaten. He said he lacked that, in part because some of his posts echoed words by rapper Eminem. The court of appeals held instead that the statute only requires that “a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm.”

Let’s break that down carefully. Elonis argues that the government must prove beyond a reasonable doubt that he was actually thinking, This message will terrify the person it refers too, and I want that. The government says that it must only prove that “a reasonable person” would have thought it would terrify.