When Is A Threat “True”?

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.

31 thoughts on “When Is A Threat “True”?

  1. John Jenkins

    Maybe the problem for me is that most of the women I know are lawyers (mostly CDLs at that!) who are mostly likely to tell some jerk to go to hell than recognize their special moment on the internet when they should grant their interlocutors power over them by recognizing the especially hurtful content of their messages, but none of those women comsider themselves such delicate flowers that they will wilt in the face of assholes, even assholes who might carry out their threats.

    Those assholes will find themselves in a discussion with the police and likely will have the opportunity to run their 1A defense at some point. The lesser assholes don’t even register. It seems to me, current law is quite able to handle all manner of assholes without sacrificing free speech on the altar of delicate flowers.

    1. SHG Post author

      This is why I argue for people to “toughen up,” rather than indulge their sensitivities. But “sticks and stones” is way out of fashion.

  2. Fubar

    From an ambiguously dated translation of a forged Roman manuscript titled “Consilium Scriptor”, misattributed to Gaius Lucilius:

    To ensure his words be not a true threat,
    Prudent authors will levy a brew debt:
    “If my words cause you fear,
    Then you owe me a beer!”
    Thusly thwart thou the tender froufrou set.

  3. Jack

    Hit ‘Em Up by 2Pac named specific people and promised to cut them up, kidnap them, and kill them in myriad ways while referencing real murders that took place. He even he had the means and motive to carry out those lyrical threats and the targets of that song clearly took it as a threat, but I don’t recall “People v. Shakur” being anything about “true threats” in his lyrics . Not that emulating 2pac would be on the top of my todo list, considering he was murdered and all, but that was nearly 20 years ago and there have been hundreds of other gold and platinum selling rappers with similar lyrics that have come and gone with varying amounts of fanfare and and I don’t recall a single one going to jail for the content of those albums.

    Why is it so much different when the guy is a nobody Eminem wannabe? Does the success and popularity of the art somehow determine whether a threat is true or not?

    1. SHG Post author

      Why is it so much different when the guy is a nobody Eminem wannabe? Does the success and popularity of the art somehow determine whether a threat is true or not?

      I posed your question to Kim Kardashian, and she said, “duh, yeah.”

  4. Jim Tyre

    If it’s the way an objectively reasonable person perceives his words,

    Oh, Scott, you know that the objectively reasonable person is just a legal fiction, there is no such thing IRL.

    When I was in l-skool, one of my get rich quick schemes was to become a certified ORP. So much of the law depends on ORPs, I figured being a certified one would be invaluable. And, by definition, anything I might choose to charge would be reasonable. Many agreed I was certifiable, but no one certified me.

  5. Pan

    “If it’s Elonis’ intent, then his denial of wrongful intent and proffer of benign purpose means no crime occurred.”

    Are you suggesting that if Elonis testifies to an innocent purpose, he wouldn’t be convicted of the crime? That’s not quite how it works.

    1. SHG Post author

      No, no, no. Don’t confuse the theory with the practice. Intent is proven by conduct, where a person is deemed to intend the natural consequences of his actions. The burden then shifts to the defendant to explain away his purported intent. Whether a jury believes him is an entirely different issue.

      But when we speak to the legal test, we speak to theoretical rules. There’s nothing necessarily real about it.

  6. Charlesmorrison

    I would agree that liability ought to hinge on both the subjective intent of the transmitter and the objective, “reasonable” interpretation of the threat on the receiving end. Focusing exclusively on one or the other as the basis for criminal liability is fairly ridiculous.

    As to the importance of the case, I think that is yet to be determined. The court’s sua sponte request that the parties additionally brief the issue whether statutory construction requires a mens rea of subjective intent may decide the matter without having to deal with the first amendment issue at all.

    So, I don’t share Lithwick’s belief that the case will inevitably be important in the long run with respect to the application of “true threats” in the age of social media (or for gender considerations). The opinion might end up nothing more than a lot of words about cannons and lenity. Avoiding constitutional questions and all that.

    Admittedly, the particular subsection at issue is silent as to mental state and that would ordinarily require recklessness be read into it. That, in turn, would throw it back into first amend problems as it’s hard to conceive of a reckless true threat. So, maybe the court is spinning it’s wheels on that issue. But, there is at least the possibility that the case ends with a whimper.

    Lastly, I was unaware that myself and the entire female population are apparently incapable of agreeing as to what constitutes an idle threat. You learn something everyday.

  7. TM

    It seems like law enforcement and the courts are at least somewhat comfortable with the idea of online threats, like in the case of Elonis, where there was a prior in-person interaction between the parties, because that way, there is something tangible and “real” that can back up “virtual” threat.

    But where the interaction between the two parties is solely online interaction, there seems to be little likelihood of getting anything done about it. Like the stories of many of the female bloggers and journalists you cited to, and my own experiences with clients facing online threats that feel very real to them, law enforcement’s perception is that you should simply walk away from the internet, and the threat will vanish.

    Much like rap music, a rich part of Mexican tradition is the corrido – the use of song to tell a story, often times one of current events. The cartels have used the narcocorrido to tell the story of the conquests of the cartel, of the people they have killed, and they use these songs as warnings to members of rival cartels and gangs. A large part of their effectiveness as a threat is because the intent of the speaker is very well known, and this is derived from prior interactions. But a narcocorrido written by someone with no known reputation, with no prior relationship, is often laughed at, or worse yet, they get killed. Looks like law enforcement uses this standard as their benchmark as well.

    1. SHG Post author

      Congratulations. Your comment wins SJ comment of the day.

      Until they come up with virtual prisons to serve virtual sentences, it’s kind of a good thing that cops don’t pursue virtual hurt feelings and stick to real harms.

      1. TM

        I’m going to print this out, and hang it on my wall. My boss will be proud that you didn’t make me cry.

    2. Beth Clarkson

      I wanted to let you know that I appreciate hearing your views. I liked this post and your comment so well that I linked to them at another blog discussing this issue:

      [Ed. Note: Link deleted per rules.]

      1. SHG Post author

        Thanks, Beth, and sorry about deleting the link, but rules. I did check over there, and perhaps they would do better to ask what my sentiments are then engage in baseless speculation. That’s only if they want to know, of course.

        Edit: I checked back and see that you’re now under attack for not hating me enough. Sorry that only one view is tolerated there, but not surprised. #Irony

        1. Beth

          My apologies. I hadn’t realized it was against the rules to post links. My bad. Some people are sensitive to links and/or quotes being used without letting them know. That’s all I was trying to accomplish.

          Also, my apologies for the attacks on you. That wasn’t my intention. I haven’t been there yet this morning and now I’ll a little afraid to see what’s been unleashed.

          This is an issue that I haven’t yet come to a conclusion on. I was curious to see what the response would be to other viewpoints on the matter.

          1. SHG Post author

            No need for apologies. Happens all the time.

            When you express ideas, you invite people to disagree. That’s how the marketplace works. It’s all cool.

      2. John Barleycorn

        Ophelia needs some love Beth.

        I am standing by, a la carte Zappa at the ready if needed.

        I wouldn’t go back in there without some mace incase she attacks. You done did something or another you deliciously delightful instigator you.

        I think she likes you actually. She could have called you a provocative pot stirring ________. But she didn’t.

  8. John Barleycorn

    Go Beth! Papered up, statistics even.

    Very cool!

    If you need any air support or trench trolling while pondering the subject let me know.

    I have some “ideas” on how to quantify this illusion of hurt.

    1. John Barleycorn

      Qwints is certain the esteemed one knows a thing or two about being a CDL. Other shit, not so much….

      ~~~I’m a regular reader of Scott Greenfield as well. Like many bloggers, he’s someone who is useful to listen to when he talks about what he knows (actually practicing Criminal defense law) and not that useful when he’s opining without knowledge of a subject (see basically everything he’s written on feminism).~~~

      Everything. Damn!

      More please. I promise I won’t listen esteemed one but it turns me on so when you go opining that my mind just wonders off.

      Qwints the SJ comment section needs you. Listening is alright and all but you simply can’t let the esteemed one go opining all over the front pages of his own blog unchecked.

      1. SHG Post author

        Nobody wants to hear that they’re praying to the wrong god. But it makes me wonder how someone who can have sufficient concern for criminal law that she reads SJ can handle the cognitive dissonance when all notions of their previously beloved constitutional rights and due process fly from their head the moment someone mentions women. It’s like magic.

    2. Beth

      Thanks. I try to keep my comments civil and polite. Expressing disagreement (I’m a contrarian) always attracts flack, but I don’t learn anything new if I only read people I already agree with.

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