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Free speech is for the real goofs, too

Regrettably but inevitably, it’s frequently jerks who push and define the limits of the First Amendment right of free expression.

Recall the U.S. Supreme Court decision rightly protecting the jackasses who burn our flag. And the one — I hate to agree but have to — allowing heartless fanatics to “protest” at funerals of fallen warriors. And the ruling — another one correct but hard to swallow — keeping out of jail sickos who videotape dog fights.

The First Amendment means nothing if it doesn’t safeguard obnoxious speech that offends us.

Now before the high court is the case of Anthony Elonis: Was he an Internet stalker posing a true threat to his estranged wife, or was he just a creep exercising his free speech rights by writing cruel and repulsive Facebook postings as “therapy” to help him get through his divorce?

A federal court in Pennsylvania in 2011 found him to be a threat under a law against interstate communications that threaten to injure someone. He’s out on probation after three years in prison.

In one of a number of postings directed at his wife, Elonis wrote, “There’s one way to love ya, but a thousand ways to kill ya, and I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

You may notice that the language has the rhythm of a rap song. Which was part of his defense, he was only expressing a rap song. Which prompted Chief Justice John Roberts to wonder how to differentiate a real threat from entertainment, citing famous rap singer Eminem’s lyrics that talked about drowning his wife.

Justice Samuel Alito saw the problem with that: “This sounds like a road map for threatening a spouse and getting away with it. You put it in rhyme and you put some stuff about the Internet on it and you say, ‘I’m an aspiring rap artist.’ And so then you are free from prosecution.”

The Elonis Facebook rants weren’t limited to his wife. He seemed to target area elementary schools with postings like, “Hell hath no fury like a crazy man in a kindergarten class.”

After an FBI agent visited him because of that, Elonis again took to Facebook: “Little agent lady stood so close, took all the strength I had not to turn the b—- ghost. Pull my knife, flick my wrist, and slit her throat.”

The issue before the court is how to determine whether a threat is real. The standard used to convict Elonis was whether a reasonable person would consider his words a true threat. His attorney argues that the standard should be whether he actually intended to threaten his wife.