In the age of GamerGate, targeted online abuse of women of color, and increased attempts by the conservative right to weaponize the First Amendment to their advantage, the Elonis case currently before the Supreme Court perfectly captures the limits of our legal system. Namely, we must adapt the law to our rapidly changing digital communications landscape while avoiding the criminalization of speech or privileging some speakers over others. The problem is, I don’t know if that’s possible.
Those limits were on display Monday as the Roberts Court wrestled over when violent online speech constitutes a criminal “true threat,” and when such speech should be constitutionally protected. The case involves Anthony Elonis, a Pennsylvania man convicted in 2010 under federal law for posting a series of violent and threatening messages on his Facebook page. Elonis reportedly began making public statements on the social media site shortly after his wife and their two small children moved out. Elonis also began acting out at his then workplace, including engaging in behavior that led to a co-worker filing five sexual harassment complaints against him.
After he was eventually fired, Elonis’ posts became increasingly violent and targeted. According to court documents, Elonis’ Facebook statements included threats to kill his ex-wife, blow up the sheriff’s office, shoot up a kindergarten, and attack former co-workers. Elonis’ ex-wife testified that she was “extremely afraid” and felt like she was being stalked by Elonis’ posts. Elonis was eventually charged and convicted under a federal statute that makes it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” Elonis challenged the conviction, arguing that his Facebook posts were not criminal threats, but merely creative expressions and therefore protected by the First Amendment.
Elonis’ attorneys claim that Elonis did not intend for his statements to be actual threats; they say he was just imitating Eminem. But the federal government maintains that the speaker’s motivation is not how the Court should determine the standard for what constitutes a “threat.” Under the argument put forward by the federal government, if a “reasonable person” would interpret an Internet rant as a threat, that should be enough to remove any First Amendment protections from that speech.
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This chasm between what constitutes free speech and what constitutes criminal threats is one federal courts have struggled with in recent years, especially after 2003, when the Supreme Court ruled in Virginia v. Black that burning a cross could sometimes count as free speech. On Monday, the Court sought to fill the divide between whether a threat can be determined by the speaker or the recipient with some middle ground. But in the case of violent online messages, middle ground may be an impossibility—no matter how hard the justices search for it.
For example, during Monday’s arguments, Chief Justice John Roberts emphasized the context of the speech at issue, offering up teenage speakers as an example of how and why the framing of the violent messages matter. “You don’t take what is on the Internet in the abstract and say, ‘This person wants to do something horrible,'” said Roberts, speaking about how courts in the future might consider controversial speech in that hypothetical middle ground framework. “You are familiar with the context.”
Elonis’ attorney pointed out that in order to understand the context of the speech at issue, courts must consider the speaker’s intent—which would mean adopting the standard Elonis was advocating.
The chief justice returned to this theme of context with the federal government’s proposed “reasonable person” standard, asking Deputy Solicitor General Michael Dreeben, “If you have a statement made in the style of rap music … is the reasonable person supposed to be someone familiar with that style and the use of what might be viewed as threatening words in connection with that music?”
Dreeben responded that of course it depends whom the speaker is speaking to. That’s why, he said, Elonis’ case was different than the government trying to prosecute entertainers like Eminem, who threaten women with rape and murder daily in the name of art.
The chief justice didn’t appear that convinced, quoting the lyrics from Eminem’s “’97 Bonnie and Clyde,” which Elonis’ attorney claimed had in part inspired his client to take to Facebook for his rants. “What about the language at pages 54 to 55 of the Petitioner’s brief?” asked Roberts. “You know, ‘Dada make a nice bed for Mommy at the bottom of the lake,’ … this is during the context of a domestic dispute between a husband and wife. ‘There goes Mama splashing in the water, no more fighting with Dad,’ you know, all that stuff.”
Dreeben responded that Eminem had been trying to broadly entertain an audience. Elonis, on the other hand had a specific history with the targets of his threatening posts.
But Roberts didn’t appear to be swayed, suggesting the government’s proposed standard would leave rappers-in-training everywhere having to preemptively declare their artistic intent in order to be protected from possible prosecution. “So how do you start out if you want to be a rap artist?” he asked. “Your first communication you can’t say, I’m an artist, right?”
“I think that you have perfect freedom to engage in rap artistry,” responded Dreeben. Again, he reiterated that Elonis’ wife, considering the background of the situation, could have reasonably concluded that his threats were legitimate. “What you don’t have perfect freedom to do is to make statements that are like the ones in this case, after the individual receives a protection from abuse order from a court which was based on Facebook posts that his wife took as threatening, he comes out with a post and says, ‘Fold up that PFA [protection from abuse] and put it in your pocket: Will it stop a bullet?’ He knows that his wife is reading these posts,” he continued.
Elonis’ attorney closed with a dire warning for the justices that should they adopt the standard argued by the federal government it would be akin to imposing five years of felony liability anytime a listener is confused by the intention of a speaker. According to Elonis’ attorney, his client’s attempting to craft rap lyrics wasn’t a “recent invention,” and noted that Elonis’ postings included “long and painful-to-read rap which has nothing to do with his wife.”
“Again, you can imagine a situation where somebody says, ‘I’m posting this for entertainment purposes only,'” Elonis said, referring to the posts.
In the end it was Justice Samuel Alito, of all people, who seemed to grasp the real danger to women lurking in the Elonis case. “Well, this sounds like a road map for threatening a spouse and getting away with it,” he said. “You put it in rhyme and you put some stuff about the Internet on it and you say, ‘I’m an aspiring rap artist.’”
At the close of the arguments, though, it appeared as if a majority of the justices were uncomfortable with the government’s position that a speaker could be found to have made a criminal threat, so long as a reasonable person would view them as likely to cause fear of harm.
On the one hand, I’m sympathetic to the First Amendment purists’ argument that the answer to bad speech like Elonis’ is not to criminalize that speech, but to answer it with more speech. Furthermore, I am definitely reluctant to grant law enforcement any more police power than it already has. So I can see where Elonis’ attorneys are coming from. However, it is undeniable that not all online threats and speakers are the same. Women, and especially women of color, face a much more threatening and hostile landscape online, with law enforcement and the private sector often slow to respond. The idea that the “solution” here to online threats would be to put the onus on those harassed individuals to talk back to their abusers and create “more speech” seems to ignore the very reality of power dynamics informing abusive language. And this leaves the courts not much room but to take abusers at their word that no matter how awful and violent the message, it’s OK, because they didn’t really mean it.
If a majority of justices do side with Elonis, such a ruling could have far-reaching consequences, especially in the fight to protect abortion access. The Tenth Circuit Court of Appeals is currently considering arguments from extreme anti-abortion advocate Angel Dillard that her letter promising explosives under the car of Kansas abortion provider Dr. Mila Means did not violate the Freedom of Access to Clinic Entrances (FACE) Act because it wasn’t a “true threat.” Then there’s the case of Mark Holick, a pastor who argues that his “Wanted”-style poster featuring the picture and home address of a Wichita abortion clinic operator is also protected speech.
If a notorious anti-abortion radical like Angel Dillard can defend her actions by claiming that she didn’t mean them, or if a former partner can posts threats describing in detail the violence he plans to commit without consequence by deeming them “lyrics,” how does that protect advocates? That outcome, like we witnessed this summer in the McCullen v. Coakley buffer zone case, is a full embrace of the rights of speakers over the rights of listeners. What about my right to be left alone—or abortion providers’ rights, or an ex-wife’s rights?
That said, I also think the law is so immersed in rape culture and racial inequity that any sort of “reasonable person” standard, as argued by the federal government, is from the start a legal fiction that will replicate the very inequities it was supposed to counteract. If a majority of our federal judges are white men, who do we think is their default “reasonable person”? A Black woman? Not likely. And how does the lack of judicial diversity and a culture steeped in rape apology change the way those judges view the “reasonableness” of a particular threat? Those are vital, difficult issues that so far none of the proposed arguments or standards, in my opinion, adequately address.
The very fact that so many big and important questions won’t get answered no matter how the Court rules in Elonis is probably the best indication we have of the limits of the courts in their ability to strike any true balance of rights at all. Maybe the major lesson we can take from cases like Elonis is that no matter the standard the Court adopts in judging free speech from criminal speech, the outcome always seems to benefit those with the most power. Or, in this case, the loudest voice.