There should be little doubt about the ruinous effects of online threats. Be it from strangers or acquaintances, threats delivered over social media can certainly be violently traumatizing. Whether they should be considered criminal is, however, another question entirely.
The issue will be considered by the Supreme Court, it was determined today, in the upcoming review of a case in which a man was sentenced to nearly four years for posting Facebook comments — including vows to kill his wife and a federal agent, among others.
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The defendant, Anthony Elonis, who wrote some of the social media comments in rap-style verse, contests that he intended no actual physical violence. His attorneys hold that Elonis’s conviction violates his right to free speech. Elonis has already served his prison time, but nonetheless is fighting to have his conviction overturned.
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Speech is only free, constitutionally speaking, if it does not impinge on the safety of others. But Elonis’s purported intent will not be the focus of legal deliberations by the justices. Rather, they must determine whether a “reasonable” person would feel threatened by the comments. It’s one of those strange idiosyncrasies of legal logic that forces a distinction between subjective intent and objective fact, when in reality, there are not two such distinct categories. But the law draws sharp lines, where lived experience is blurry.
Elonis’s case highlights a particular difficulty within current legal standards when applied to a social media context. What counts as a “reasonable” reading of online threatening comments is destabilized in a forum as public as Facebook. One man’s violent intent is another’s artistic expression of rage. Neither of which is to suggest that Elonis’s wife was not genuinely threatened by the comments, nor that such language should be condoned, in public or in private.
Legislating speech, especially in the age of social media, is a minefield. This Supreme Court tends towards a strong maintenance of the First Amendment, including siding with the vile Westboro Baptist Church’s legal right to picket funerals. One imagines that Elonis’s case will go the same way.
We find ourselves navigating a terrain on which the legal and the ethical once again don’t meet. No one should advocate for threats of domestic abuse and murder to proliferate online. These sorts of public speech acts, like the cyber bullying that has driven teens to suicide, are not just threats of violence, they are violence.
But, as is often the case, the police and the justice system are not the best arbiters of violence here. Were Elonis’s conviction upheld, a dangerous precedent for legislating and prosecuting against free speech would be set. And it has not escaped my attention that, while countless misogynist, ultra-violent slurs ooze through social media, Elonis’s comments, which also included threats to an FBI agent looking in to his case, led to conviction.
In wanting to establish this sort of cyber-violence as unacceptable, we must not collapse the despicable into the illegal. Broader free speech protections are at risk if we do so. This is not to say that we ought not look to other weapons in our arsenals to fight online aggressors and support its victims — this is our collective challenge, not the Supreme Court’s.
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Follow Natasha Lennard on Twitter: @natashalennard
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