Last week, the United States Supreme Court agreed to hear an appeal from the Third Circuit about ... Facebook! Surprisingly enough, this case is not about the company’s privacy policies or about its seemingly arbitrary removal of “offensive” photos. Instead, it addresses whether criminal liability can come from posting what may appear to some to be threats on the social media website. Aside from the obvious implications on criminal law, the Supreme Court’s upcoming decision will have significant First Amendment issues. The posts at the center of what is sure to be an eagerly awaited decision were written by Anthony Elonis. In response to the breakdown of his marriage and losing his job, he took to Facebook to write a number of offensive and threatening posts directed at his ex-wife, former employees, police officers, and at local kindergarten classes. While he maintained that he was only quoting from various comic sketches and rap songs, he was nevertheless indicted and convicted of making threats in violation of 18 U.S.C. § 875(c), which reads: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” Specifically, this case is about the meaning of the word “threat,” under the statute. More generally, it gives the Supreme Court the chance to make their position on “true threats” clear—whether they are subjectively or objectively defined. Until 2003, the Court clearly adopted an objective approach (Watts v. United States), that is, whether a reasonable person would perceive a threat, an approach that is still followed by many courts—both state and federal—including the Third Circuit in the present case. However, a large number of other courts believe that the Supreme Court’s 2003 decision in Virginia v. Black left them obliged to apply a subjective test – i.e. what the author intended. In Black, the Court ruled that Virginia could not pass a statute that criminalized all cross burning; instead, the state could only criminalize intentionally threatening cross burning. As a result, many courts—including the Ninth Circuit—have ruled that the subjective test advanced in Black must be “read into all threat statutes that criminalize pure speech.” Whether Black is a broad enough decision to govern the case at hand and whether it does in fact advance a subjective test for lower courts to follow will be some of the most pressing issues that the Supreme Court will have to answer. Returning to the issue faced by Anthony Elonis, if the Supreme Court determines that an objective test is required, they will likely affirm the District Court and Third Circuit’s decision that a reasonable person could find his statements to be true threats. However, if the Supreme Court imposes a subjective test, the focus of the case will shift to whether Elonis himself intended his posts on Facebook to be understood as threats. And, while the government has the Third Circuit’s lower court decision on its side, Elonis claims he is championing free speech, citing the following passage from Texas v. Johnston in his petition to the Supreme Court: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The outcome of this case is, also, very significant for criminal defendants as it will determine whether specific intent is required for a criminal conviction under 18 U.S.C. § 875(c).