New York Times

WASHINGTON — Just four years ago, the Supreme Court issued a hesitant and muddled decision in a privacy case, saying it was best to move slowly when ruling on an “emerging technology before its role in society has become clear.”

The cutting-edge innovation in the case: pagers.

That decision, and the occasional oddball question from the bench, earned the justices a reputation as doddering technophobes.

But the final weeks of the court’s current term left a different impression. In major decisions on software patents, smartphones and Internet streaming, the justices seemed savvy.

Now there is a new challenge looming on the docket for the term that starts in October, one that will require the court to consider how the First Amendment applies to social media.

The case concerns Anthony Elonis, who was prosecuted for making threats on Facebook in the form of rap lyrics after his wife left him in 2010.

He suggested that his son might consider a Halloween costume that included his estranged 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.

His wife, Tara Elonis, understood the posts as threats.

“I felt like I was being stalked,” she testified. “I felt extremely afraid for mine and my children’s and my family’s lives.”

But it is less clear that Mr. Elonis meant his words that way. He said he was “just an aspiring rapper,” and it is not hard to find rap lyrics just as lurid and violent.

Several of the posts included disclaimers and other indications that they were not in earnest. He adapted one post almost wholesale from a sketch by a comedy group, The Whitest Kids U’ Know. The Halloween post ended with an emoticon of a face with the tongue sticking out.

“Art is about pushing limits,” he wrote. “I’m willing to go to jail for my constitutional rights.”

Did his intent matter? The lower courts said no. All the prosecution had to prove, the trial judge ruled, was that a “reasonable person” would foresee that others would view his statements “as a serious expression of an intention to inflict bodily injury or take the life of an individual.”

The judge said that he did not mean to make “something said in a joking manner or an outburst of transitory anger” into a crime. But almost anyone who has ever sent an email knows how hard it is to detect those things without the cues that body language and tone of voice provide.

Mr. Elonis was convicted under a federal law that makes it a crime to communicate “any threat to injure the person of another.” The sentence was 44 months.

The case is one of many recent prosecutions “for alleged threats conveyed on new media, including Facebook, YouTube and Twitter,” according to a brief supporting Mr. Elonis from several First Amendment groups.

In urging the Supreme Court not to hear Mr. Elonis’s case, the Justice Department said his intent should make no difference. A perceived threat creates “fear and disruption,” the brief said, “regardless of whether the speaker subjectively intended the statement to be innocuous.”

Mr. Elonis’s lawyers did not deny that their approach would allow some statements with “undesirable effects.” But they said the First Amendment should tolerate those effects rather than “imprisoning a person for negligently misjudging how others would construe his words.”

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. Elonis’s case.

The Supreme Court has not given a definitive answer to the question of whether intent matters in threat cases. But in 1969 it threw out a case against a draft protester charged with threatening President Lyndon B. Johnson. “If they ever make me carry a rifle,” the protester said, “the first man I want to get in my sights is L.B.J.”

The remark was not a true threat, the court ruled, because it was conditional, made at a rally and greeted by laughter. But context is harder to gauge online.

The case, Elonis v. United States, No. 13-983, will be argued in the fall. It will again require the justices to confront a new technology and assess the meaning of the First Amendment in the age of the emoticon.