The U.S.
Supreme Court will shortly hear a very important case about threats over the
internet. After making numerous violent
threats over the internet directed at his estranged wife.
“A jury
convicted Elonis, and he spent more than three years in prison. On December 1,
the Supreme Court will hear Elonis’s First Amendment challenge to his conviction
— the first time the justices have considered limits for speech on social
media. For decades, the court has essentially said that ‘'true threats'’ are an
exception to the rule against criminalizing speech. These threats do not have
to be carried out — or even be intended to be carried out — to be considered
harmful. Bans against threats may be enacted, Justice Sandra Day O’Connor wrote in 2003, to
protect people ‘'from the fear of violence'’ and ‘'from the disruption that
fear engenders.'’ Current legal thinking is that threats do damage on their
own.
Elonis,
however, claims that he didn’t make a true threat, because he didn’t mean it.
‘'I would never hurt my wife,'’ he told the jury. ‘'I never intended to
threaten anyone. This is for me. This is therapeutic.'’ Talking about the loss
of his wife, he continued, ‘'helps me to deal with the pain.'’ He had copied
the Whitest Kids U’ Know, along with the rapper Eminem, to try his hand at art
and parody. Tara said she knew her husband had borrowed some of his words, but
they still scared her. ‘'I felt like I was being stalked,” she said in court.
‘'I felt extremely afraid for mine and my children’s and my family’s lives.'’
The central
question for the Supreme Court will be whose point of view — the speaker’s, or
the listener’s — matters. The jury was instructed to convict Anthony Elonis
if it was reasonable for him to see that Tara would interpret his posts as a
serious expression of intent to harm her. The court could uphold the standard,
or it could require that jurors be asked to convict only if they believe the
speaker truly intended to threaten harm. In essence, the court will have to
decide what matters more: one person’s freedom to express violent rage, or
another person’s freedom to live without the burden of fear?
The legal issue
is connected to a larger question: how to deal with the frequent claim that
online speech is a special form of playacting, in which a threat is as unreal
as an attack on an avatar in World of Warcraft. Gilberto Valle — known as the
Cannibal Cop for fetish chat-room messages in which he talked of capturing,
cooking and eating specific women — persuaded a judge to overturn his conviction by
saying he was just expressing a dark fantasy. In the ongoing ‘'GamerGate'’ campaign, a faction of
video-game enthusiasts tweeted death threats to women who had criticized
misogyny in video-game culture. When a few of the women felt scared and left
their homes, some gamers scoffed, dismissing the threats as ephemeral.”
For a change, I’m
siding with the government on this one. The
recipient's right to be free of threats that look credible to him or her, should
trump the poster’s right to “express violent rage” in a fashion that could
cause the recipient to live in fear. The
internet is already out of control. The Court
needs to help impose some controls on speech that is not constitutionally protected.
