How Seriously Will the Supreme Court Take Internet Harassment?

There are those who routinely overshare on Facebook, and then there is Anthony Elonis.

Elonis is a Pennsylvania father of two who, when his wife left him in May 2010, turned hostile and angry. His life fell apart pretty quickly. His job as an amusement park manager began going badly. In retaliation against a co-worker who'd accused him of sexual harassment, he posted a picture to his wall of himself holding a knife to her neck. Underneath, he wrote, "I wish." The amusement park fired him in October.

He started writing about his estranged wife on his Facebook wall, too:

There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it's not your fault you liked your daddy raped you.
 So hurry up and die, bitch, so I can forgive you.

In other posts, he appeared to be experimenting with irony:

Did you know that it's illegal for me to say I want to kill my wife?


It's illegal.


It's indirect criminal contempt.

It's one of the only sentences that I'm not allowed to say.


Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife.

I'm not actually saying it.


I'm just letting you know that it's illegal for me to say that.

(There's a lot more to that one, including an ASCII map indicating where a shooter could position himself to kill the estranged wife, but that's enough for you to get the gist.)

His estranged wife and her family became understandably alarmed. But they weren't the only subjects he was writing about:

That's it, I've had about enough


I'm checking out and making a name for myself

Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined


And hell hath no fury like a crazy man in a kindergarten class


The only question is . . . which one?

By the time he was threatening a school shooting, the FBI had gotten involved. A female agent visited Elonis at his parents' house. He did not let that go unremarked on his Facebook page either. A sample:

You know your shit's ridiculous


when you have the FBI knockin' at yo' door

Little Agent Lady stood so close

Took all the strength I had not to turn the bitch ghost


Pull my knife, flick my wrist, and slit her throat

Leave her bleedin' from her jugular in the arms of her partner

You will perhaps not be surprised to learn that these postings eventually got Elonis charged with five counts of criminal threats, and a jury convicted him on four of them. (His one acquittal was on a count of threatening the amusement park.) A federal appeals court affirmed them.

But this fall the Supreme Court will hear his appeal, and when they do they will open a giant can of worms about the Internet, the First Amendment, and the nature of a threat. Elonis is arguing that he was just writing rap lyrics—despite the dubious flow of "Did you know that it's illegal for me to say I want to kill my wife?"—and that he never intended these artistic expressions seriously. Therefore all that Facebook-encoded anger was just him exercising his freedom of speech. Because of the way the law set this up, he actually has a shot at winning.

How Seriously Will the Supreme Court Take Internet Harassment?

As even many schoolchildren in America know, the First Amendment doesn't cover threats. But the Court has constructed a confusing bit of scaffolding around our everyday sense of threats.

That scaffolding is complicated in part because it is very hard to know if someone really means to carry out a threat. They almost always say they didn't, ex post facto. And sometimes there is good reason to believe the speaker of the threat.

For example, in 1966, a young man at a political rally said: "I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." He was convicted of the crime of threatening the life of the President. The Supreme Court vacated the conviction in a decision called Watts v. United States. They ruled that the statement was a "kind of political hyperbole." He was at a rally, after all.

So his threat was not a "true threat." A "true threat" would be understood by its audience as something more than political hyperbole.

But since Watts — which was decided in 1969 — we've mostly been without a clear definition of a "true threat". Even in Virginia v. Black, which directly addressed the question in the context of a law forbidding the burning of crosses, Sandra Day O'Connor offered a less than clarifying attempt:

"True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.

If that seems to confuse the matter further, welcome to the law. Courts have had trouble parsing that sentence since the day it was handed down. Is it enough that the speaker intentionally delivered a threatening message? Or does the threat-maker also have to intend to make people believe he would really commit the act—i.e., to intimidate them?

The difference between the two might seem minor, but it's obviously easier to merely prove that you meant to send a message than it is to prove that you did it while expecting it to have a particular effect on the people who received it.

In the Third Circuit, where Elonis's last appeal was heard, the solution the courts came up with was to just chuck any evaluation of the defendant's subjective intent. Judge Anthony Scirica, who wrote the decision affirming Elonis' conviction, put it this way:

... we read "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence" to mean that the speaker must intend to make the communication. It would require adding language the Court did not write to read the passage as "statements where the speaker means to communicate [and intends the statement to be understood as] a serious expression of an intent to commit an act of unlawful violence." This is not what the Court wrote, and it is inconsistent with the logic animating the true threats exception.

Tired of reading this jargon yet? Well, here is what the Supreme Court framed the question they want to consider this fall:

Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten.

That's a little clearer, but not much.

How Seriously Will the Supreme Court Take Internet Harassment?

Arcane, abstract terms of law sometimes make for odd-seeming defenses, and of course Elonis's lawyers are going to make the strongest arguments possible to overturn his conviction. But even by that yardstick, the defenses in his briefs to the Supreme Court sound strange.

On one hand, he argues that he was just writing rap lyrics. That form is characterized by a lot of hyperbole, and often makes "threats," just not true ones, on the life of police officers, he says. And the notion of this particular art form being misundersood also raises a lot of racist stereotyping issues (although Elonis is white).

Elonis is not the only person who seems convinced this is a good defense. In an amicus brief to the court, three First Amendment law advocacy centers argue that this is one of the central issues in the case:

As a result of these and other stereotypes broadly associated with rap, a speaker who communicates through quoted verses or who frames his message in a particularly extreme style of rap may find the legal deck stacked against him in a true threat case, with listeners (both intended and unintended), jurors, and even judges perhaps wrongly assuming that the mere form of expression makes it more likely to be a true threat.

One of the law professors who worked on the brief reiterated this at Forbes, recently. And while it's certainly true that rap might kick up certain prejudices in juries, it's not clear why a court should accept the premise that Elonis was expressing himself as a rap artist.

One thing that might distinguish Elonis's "work" from run-of-the-mill rap lyrics is that rather than offering them at an open mic or writing them in a private file, he posted them on Facebook—distributing them in a public but narrow forum, whose small audience disproportionately included his specific targets.

That hints at the second strange ground of Elonis's apparent defense. The entire reason, it seems, that so many legal minds thought the Supreme Court ought to hear this case is that it involves the internet, which they find shadowy and frightening for not quite the right reasons. As Elonis's brief argues:

The inherently impersonal nature of online communication makes [it] inherently susceptible to misinterpretation… modern media allow personal reflections intended for a small audience (or no audience) to be viewed widely by people who are unfamiliar with the context in which the statements were made and thus who may interpret the statements much differently than the speaker intended.

While it's not wrong per se, describing the internet this way doesn't make a ton of sense in this particular case. Here, the relevant premise isn't that total strangers could encounter your Facebook statuses and find them frightening and cryptic. It's that Facebook increases the likelihood that the specific people you are writing about—however ironically, artistically, or in any other mode—are going to come across it and feel surveilled or directly threatened.

Because sure, in your internet life, you have undoubtedly encountered the odd out-of-context social media status from a friend that made you briefly wonder about their mental stability. But it's a whole other kind of feeling when they've named you as the thing they're feeling so deranged about.

How Seriously Will the Supreme Court Take Internet Harassment?

What makes those briefs doubly irksome is that the issues Elonis raises are important ones, ones on which we could certainly use some guidance. Internet harassment is a real thing. It happens to real people. And as things current stand, across a host of contexts, it isn't taken seriously enough by the law.

Framing the issue as being about rap lyrics, and the fact that the speaker can't control the contexts in which his 'lyrics" are heard, feeds into this prevailing belief that internet threats can't be genuine and intentional. Earlier this year, for example, Amanda Hess wrote in the Pacific Standard about just one of a few times she called police about online threats. Here is the response she received:

The first time I reported an online rape threat to police, in 2009, the officer dispatched to my home asked, "Why would anyone bother to do something like that?" and declined to file a report. In Palm Springs, the officer who came to my room said, "This guy could be sitting in a basement in Nebraska for all we know." That my stalker had said that he lived in my state, and had plans to seek me out at home, was dismissed as just another online ruse.

But as Hess points out, "online" isn't just a pretend space:

... Twitter is the place where I laugh, whine, work, schmooze, procrastinate, and flirt. It sits in my back pocket wherever I go and lies next to me when I fall asleep.

Will Supreme Court judges who live their professional and personal lives largely off social media be more sympathetic than those cops? I can't be the only person who thinks it's unlikely they will. Particularly in older demographics, there's still this conviction that a life lived online is largely imaginary, ephemeral, unimportant. A place where everyone's just "rapping," just shooting off their mouths, is one which a lot of people still think you shouldn't and can't take seriously.

The importance of Elonis's case is that it has all the right elements to blow up those assumptions. That's particularly true when we're thinking about the threats he made against his wife. Elonis was married to her, he knew where she lived; he wasn't just an online figure to her.

The Court won't retry Elonis's case on the facts but rather the law. They will have their argument about whether the language in the statute requires "subjective intent." The thing they know, though, and we will know watching them, is that the question before them is rather less technical. The question is simply whether this kind of relatively clear harassment is just "speech" worth protecting.

Of course, bad behavior has often been protected by the First Amendment, right up to those Nazis marching in Skokie. But in that sort of case, the political dimensions of the speech are easy to see. Perhaps you could argue his threat against the school tied into a popular discussion of the rise of school shootings, and that even the relatively specific threat against the FBI agent was intended as a critique of police culture more generally. The threats against the wife are about nothing other than frightening her.

The relative claustrophobia of this matter is, after all, right there in the facts. Just imagine filing for a restraining order against your husband, as Elonis' wife did, and then seeing or hearing he'd written this on his Facebook wall:

Fold up your PFA [protection-from-abuse order] and put it in your pocket

Is it thick enough to stop a bullet?

Try to enforce an Order

That was improperly granted in the first place

Me thinks the judge needs an education on true threat jurisprudence

And prison time will add zeroes to my settlement

Which you won't see a lick

Because you suck dog dick in front of children

And if worse comes to worse I've got enough explosives

to take care of the state police and the sheriff's department

[link: Freedom of Speech, www.wikipedia.org]

Anyone who thinks that Wikipedia link should have comforted her should try Elonis's advice: Print it out, fold it up, put it in your pocket, and see if it calms the beating of your heart.

To contact the author of this post, email michelle.dean@gmail.com.

[Image by Jim Cooke.]