If you read this post, I’m going to come to your house and beat the living daylights out of you. Does this scare you? Probably not, both because you know I won’t do it, and because you know I don’t mean it. Not because you don’t necessarily deserve a damn good beating, but because there isn’t a chance in the world I could actually do it because anybody in the world has the capability of reading this post, and I wouldn’t have a clue who you are.
So while it’s a putative threat, it’s not a “true threat,” as the categorical exception to the First Amendment would require in order for my threat to be actionable. But why? Is it because I didn’t really mean it, or because you weren’t really afraid? That’s the question posed in the Elonis case, in which cert was granted by the Supremes.
At Slate, Dahlia Lithwick offers a conflicted view of the case. Anthony Elonis, regardless of whether his threats were true or not, is a pretty troubled dude, based on the thoughts that flow through his head alone. He posted “rap lyrics” on Facebook about killing people. He claims it was artistry, because Eminem. His wife, one of the targets of his artistry, thought otherwise. It didn’t help that he “artistically” wrote about shooting up a kindergarten class.
The case deals with an area of First Amendment law known as “true threats.” These kinds of threats are unprotected under the First Amendment. The trick is figuring out whether Elonis’ speech was a true threat or not. At his trial, the jury was told that the legal standard for whether something is an unprotected “true threat” is if an objective person could consider Elonis’ posts to be threatening. Elonis claims that the correct test should look at whether he intended for the posts to be understood as threats.
*He also argues that his rap lyrics are important protected speech, no different from the rap lyrics created by the great artists. In his view the threatening and violent lyrics he was posting were emulating those of Eminem. (Elonis was careful to include some disclaimers among his writings, suggesting that this was all more art than threat, and also an act of First Amendment protest: “Art is about pushing limits,” he posted. “I’m willing to go to jail for my constitutional rights. Are you?”)
Was he venting? Was he creating important art? Was he conveying a message intended to strike fear in others generally, or scare particular individuals? The sides are fairly clear, despite the convoluted claims: If it’s Elonis’ intent, then his denial of wrongful intent and proffer of benign purpose means no crime occurred. If it’s the way an objectively reasonable person perceives his words, then he won’t have spent the last three years in prison for nothing.
What adds a secondary layer to this Slate article is Lithwick’s personal conflict, noting that she has a technical horse in the race:
Disclosure: I serve on the board of the Thomas Jefferson Center for the Protection of Free Expression, which is among Elonis’ lawyers.
Aha! you say. So she’s an Elonis fangirl, biased from the gate, right? Well, not so fast. Aside from the legal issues involved in the case, there are political issues as well that might fall below the radar if one’s not careful.
This case is not only crucially important in that it will force the court to clarify its own “true threats” doctrine and finally apply it to social media to determine whether—as Justice Stephen Breyer has suggested—the whole world is a crowded theater. But perhaps it’s even more important in pushing the conversation about law enforcement, prosecution, and threats to include a much more sophisticated understanding of the ways in which the Internet is not just a rally or a letter.
*As Amanda Hess has explained so powerfully, women experience threats on social media in ways that can have crippling economic and psychological effects. At the margins, this is a case about the line between first amendment performance art, fantasy violence, real threats—and real fear. In a world in which men and women find it nearly impossible to agree on what’s an idle threat and what’s a legitimate one, it’s also a case about where that line lies, or whether there can be one.
At its surface, this is a “true threat” case, but below the surface this is a gender issue, that the meme of women being uniquely vulnerable to threats and fear on the internet should inform the court’s rule on the parameters of the First Amendment categorical true threat exception.
Most readers will not be familiar with the name Amanda Hess, who writes at the precipice of neo-feminism and reason. The linked post is fairly representative of her writing and thinking, and you can decide for yourself whether it “powerfully explains” the special female experience on the internet. That Lithwick characterizes it as such, however, is deeply disturbing, and sucks her credibility rather than bolsters Hess’.
Given the options presented in Elonis, the infusion of feminist dogma into the argument, as if the First Amendment definition of “true threat” on the interwebs should factor into consideration the special fears of delicate women, rather than the mere objectively reasonable person, seeks to tip the balance. Maybe even suggest that the rule needs to explicitly take into account the emotional sensibilities of the listener, because of the “crippling economic and psychological effects” perceived threats have on women.
From a neutral perspective, there is a question as to why the test shouldn’t be both, the subjective intent of the speaker and the objective perception of the reasonable listener. before speech becomes a true threat. But such a two-prong inquiry would fail to adequately address the emotional needs of the most fearful internet user. Should a crime be defined by the most sensitive person on the internet? That’s what’s at stake in Elonis.
* Paragraph breaks added to make the quotes readable.