LOS ANGELES – A groundbreaking lawsuit over the cyber-bullying of a 15-year-old boy mistaken as gay will proceed, while testing the limits of free expression.

The 2nd District Court of Appeals ruled Monday in a 2-1 vote that the threats, posted on the teen’s Web site, are not protected free speech.

The teen has set up his Web site to promote his interests in movies and music. Schoolmates, including some who wrongly thought that the boy was gay, left messages that threatened to pound his head in with an ice pick and to rip out his heart and feed it to him.

The boy’s family sued six students and their parents, alleging hate crimes, defamation and intentional infliction of emotional distress.

In the lower court, attorneys for the defendants argued that their clients’ First Amendment right to free speech was being violated, but the judge rejected that argument. The issue then went to the appeals court.

The appeals court, meanwhile, returned the case back to the lower court, ruling that the Internet messages showed harmful intent and is not protected by the free-speech right.

Attorneys for the defendants plan to appeal the appeals court ruling to the state Supreme Court.