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Jun 17 2014

All the little cuts

Are threats really threats?

Well, you can’t always tell, but you don’t always want to risk it, either.

The Supreme Court is about to consider Facebook threats to murder the ex-wife brand of threats.

The US Supreme Court is to decide whether violent threats or images posted on Facebook and other social networks constitute free speech or a criminal act, in the case of a man who made comments about his estranged wife.

Anthony Elonis wrote about killing his wife publicly on Facebook and also posted other comments and images about her, about his co-workers and about the law enforcement officials who investigated the threats.

“There’s one way to love you but a thousand ways to kill you,” he wrote about his wife. “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

Looks like a threat to me.

Elonis claims that the posts were just artistic expressions and his way of dealing with his personal problems, not indications that he wanted to harm anyone. But both the lower court and the appeals court ruled that the posts were criminal threats, because even if he didn’t intend to hurt anyone, a reasonable person would have felt threatened by them.

“Although the language was — as with popular rap songs addressing the same themes — sometimes violent, petitioner posted explicit disclaimers in his profile explaining that his posts were ‘fictitious lyrics,’ and he was ‘only exercising [his] constitutional right to freedom of speech’,” his filing to the Supreme Court said.

In order to frighten his ex-wife. I don’t consider that a “right.”

Elonis and his legal team have pushed the case all the way to the Supreme Court, with free speech advocacy group the Thomas Jefferson Centre for the Protection of Free Expression also supporting his attempt to have the court consider the issue.

It’s a threat. There shouldn’t be a right to make credible-looking threats.

26 comments

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  1. 1
    John Morales

    But hey, he didn’t print the stuff (caveats and all), stuff it in an envelope and slip it under her door, did he?

    (It was only on the internet!)

  2. 2
    Ed

    WTF?! It’s not like he wrote a song or story about murder, or talked about what he felt like doing or would do if not restrained by conscience or fear of getting caught. He was saying “I will do _____” There may be legitimate gray areas in relating a fantasy or in creative artistic works, even if they’re very graphic and have creepy similarities to real life situations.

    But this looks like a simple statement of intent. Even if he doesn’t really intend to do it (and I hope this is the case) it’s still intimidation. Just because it’s on Facebook shouldn’t mean anything. He posted it in a publicly accessible place where she’s likely to see it or find out about it.

    I’m getting tired of the kind of free speech absolutism promoted by some of these civil liberties organizations, even though I agree with them 90% of the time. The same type of people defended the “right” of Fred Phelps and his gang to harass mourners at funerals.

  3. 3
    Ophelia Benson

    Yeah. It’s a threat. It’s not a veiled threat, it’s a threat.

  4. 4
    qwints

    The issue being raised before the Supreme Court is not whether the posts were threatening or credible, but whether the state has to prove that Elonis made them “In order to frighten his ex-wife.” From what I’ve read, I agree with you that he did, in fact, intend to threaten her and, if the state can prove that in court through the posts, he’ll stay in jail regardless of what the Supreme Court decides.

    Cert Petition

  5. 5
    left0ver1under

    Threats don’t even have to be explicit descriptions of acts, though because some aren’t explicit, they go unprosecuted. After an acrimonious divorce Hulk Hogan said of his ex-wife, “I get OJ now.” Who wouldn’t consider that a threat? Law enforcement, apparently.

    It’s selective prosecution, as with most crimes. A man was sent to prison in 2001 for saying “burning bush”. He was calling on “god” to take action, not people, and it was prosecuted as a violent threat. Around the same time, Pat Robertson saying “We need to take him [Chavez] out” went unnoticed.

  6. 6
    qwints

    Relevant to the 2001 case: Whitest Kids U Know

  7. 7
    Pen

    The thing is, when someone like Eliot Rodger posts death threats on Facebook then acts, everyone says how obvious it was. The authorities should have acted sooner! But then some guy comes along and says it’s just artistic expression.

    Schrodinger’s Murderer! We have no way of telling the difference. We must adopt a coherent policy based on e symptom not anyone’s (frankly self-entitled) expectations of telepathy.

    I think people who’ve obviously put some effort into their public death threats should be considered in need of professional help and surveillance. People who say, ‘I could kill him’ when their mate is half an hour late then happily go drinking with same are exempt.

  8. 8
    qwints

    People who make true threats have almost certainly committed a crime, and should be criminally punished for it. Many things I’ve heard from women tell me that police don’t take them seriously enough.

  9. 9
    quixote

    Funny thing about those “artistic” threats. Make them about blowing up a plane or the president or an airport, and the FBI, the NSA, SWAT teams, and helicopter gunships, for all I know, are on it. But women? Gee whiz. It only matters if he actually does it, right? Right?

  10. 10
    Beth

    It’s an interesting case. Here’s another perspective from the POV of a defense lawyer.

    http://blog.simplejustice.us/2014/06/18/when-is-a-threat-true/

  11. 11
    qwints

    Scott Greenfield’s dismissal of the feminist implications of this is irrelevant to this case. I also think he’s wrong that Elonis’s “denial of wrongful intent and proffer of benign purpose” would be dispositive. Juries ignore defendants’ proffered explanations of innocent intent every day by looking at the defendants’ actual deeds in context.

  12. 12
    Giliell, professional cynic -Ilk-

    From Beth’s link

    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.

    So, apparently women are not reasonable people.
    The only objective person to judge whether a threat is real is obviously a dude because women are obviously too damn emotional to be taken serious

  13. 13
    Ophelia Benson

    Well that’s a shitty post (the one Beth linked to).

  14. 14
    John Morales

    Giliell @12,

    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.

    So, apparently women are not reasonable people.

    If based on what you quoted, then it’s only apparent with the hidden assumption that all women are delicate, because there are feminist men and non-feminist women, and the quotation only implies that “feminist dogma” isn’t reasonable and suggests that delicate women aren’t reasonable.

    (You’re probably right about their sentiments, but you can’t infer it from that quotation)

  15. 15
    Beth

    @Ophelia – I didn’t find it all that awful. I find it helpful to read different perspectives on issues I haven’t come to a conclusion about yet. I think he brings up a good point about the intent of the person making the threat being material to whether or not it qualifies as a ‘true threat’ as well as the perception of the person it’s directed and the perception of the mythical ‘reasonable person’.

    I also found one of the commenters at that site valuable.

    “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.”

    @ John Morales

    I read his blog regularly and he clearly doesn’t think all women are ‘delicate’. But I don’t think he’s terribly sympathetic to the feminist issues in the news these days.

  16. 16
    John Morales

    Beth @15,

    [...] But I don’t think he’s terribly sympathetic to the feminist issues in the news these days.

    You greatly exceed my own prowess at understatement, given that the quotation literally claims that “factor[ing] into consideration the special fears of delicate women” is unreasonable, because so doing is the “infusion of feminist dogma into the argument”.

  17. 17
    John Morales

    Beth, I can’t help but notice this from your adduced valuable comment:

    But where the interaction between the two parties is solely online interaction, there seems to be little likelihood of getting anything done about it. [...] you should simply walk away from the internet, and the threat will vanish.

    Um, this is entirely predicated that it really is a threat.

    I think that is the very point of this particular post: “Are threats really threats?”, it tautologically begins.

    (Also of interest is that the concept of avoiding the internet is no biggie, but a simple thing to do)

  18. 18
    PatrickG

    @Beth:

    I don’t think he’s terribly sympathetic to the feminist issues in the news these days

    That might be the understatement of the year. Everybody else seems to have stopped at his “infusion of feminism” paragraph, but his closing is:

    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.

    To add to Giliel’s comment at #12… there apparently can’t exist such a category of “reasonable person” that includes women — because by default, any woman is the most sensitive person on the internet.

    I’ll charitably assume that Greenfield simply isn’t aware of what i read as a debilitating case of cognitive bias. Less charitably, I’d assume he’s actively antagonistic towards feminists (and feminist theory), and considers violent threats against people — er, sorry, women, different category — unimportant in the face of Free Speech.

  19. 19
    PatrickG

    Also, Greenfield in the comments:

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

    In response to someone observing that it’s very difficult to get law enforcement to take things on the internet seriously — note that this commenter explicitly mentions that this is the case when people have had no prior interactions:

    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.

    And finally, it’s interesting to note that he begins the entire piece with:

    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

    The woman in question was the guy’s wife, who presumably has an opinion on whether he would do it, or meant it. It might appear that this is a ‘true threat’ case, according to Greenfield, but not really, because feminism.

    The mind boggles.

    Yeesh.

  20. 20
    Ophelia Benson

    Beth, no, of course I gathered that you didn’t find it all that awful. I’ve been gathering for some time that you like to share or say very provocative stuff and then tell us how calm you feel about whatever the provocation was. (I wonder if you do this in real life too. I wonder if when a close friend or a beloved relative is upset about something you lean back placidly and say you’re not all that bothered by it.)

    I disagree with your finding that comment “valuable.” I note that you singled out the part that says

    law enforcement’s perception is that you should simply walk away from the internet, and the threat will vanish.

    My work is on the internet. I can’t “simply walk away from the internet” without also simply walking away from the work I do. Oddly enough, I don’t want to do that (nor can I afford to).

  21. 21
    Ophelia Benson

    Wait, you’ve explained that you read everything very literally, so you won’t detect the undertone of what I said. I’ll have to spell it out.

    It PISSES ME OFF when people tell me to deal with obsessive harassment by getting off the internet. Do you get people telling you to stop doing the work you do? Don’t tell me that.

  22. 22
    qwints

    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).

  23. 23
    Beth

    Ophelia,

    Thanks for letting me know how you feel. I didn’t mean to make you angry. I didn’t take that comment as telling you to stop doing what you do, but as expressing the difficulty of getting law enforcement to take such threats seriously.

    I think, due to the many women who have started talking about the problem of anonymous internet threats, that it is a problem that needs to be dealt with. I also think that there are repercussions and unintended consequences to dealing with the problem by assuming all such threats are ‘true threats’.

    My apologies for upsetting you.

  24. 24
    Bernard Bumner

    I also think that there are repercussions and unintended consequences to dealing with the problem by assuming all such threats are ‘true threats’.

    But the consequences of overreacting to a perceived threat don’t even begin to approach the seriousness of the consequences of underreacting to a perceived threat.

    Demonstrable reaction by authorities to reckless, perceived, or real threats will help to make people safe and feel safe.

  25. 25
    Giliell, professional cynic -Ilk-

    I also think that there are repercussions and unintended consequences to dealing with the problem by assuming all such threats are ‘true threats’.

    There’s a story I heard a few times over the last years. It goes like this: A guy kills hisgf/wife/ex/schoolmates/boss. When it’s over there are messages on facebook, on forums, videos on youtube, brlghtly written notes on exercise books in which the guy tells the world that he wants to kill one of the above. And everybody say “oh, but I didn’t think he meant it.
    Now tell me, how many more times should we be willing to hear such tales? How many more people have to die before we actually treat threats as serious before somebody gets killed? You know, it’s really easy NOT to say threatening things.

  26. 26
    screechymonkey

    Beth @23,

    Please enlighten me about these “repercussions and unintended consequences” of treating statements like “I’m going to rape and murder you” as true threats. Enlighten me as to the important societal value in allowing people to issue such threats and then escape conviction by saying, “but in my own head, I was totes kidding!”

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