How SCOTUS made it easier for trolls to get away with making death threats

The Supreme Court is making the Internet an even worse place.

Mar 1, 2020, 2:30 am*

Internet Culture


Gillian Branstetter

This week, the Supreme Court ruled that, in charging online harassers and stalkers, government prosecutors must prove the creep in question must have had an intent to threaten their target.

The Court ruled 8-1 to overturn the conviction of Anthony Elonis of Lehigh Valley, Penn. Elonis, whose wife had taken their two children and left him, was sentenced to 44 months in prison for threatening her (“there’s one way to love you but a thousand ways to kill you”), a kindergarten class (“and hell hath no fury like a crazy man in a Kindergarten class/the only question is which one?”), and an FBI agent who visited his home (“Leave her bleedin’ from her jugular”), all on Facebook.

Supposedly under the guise of a prospective rap career—though Anthony Elonis’ wife said he had never mentioned such an ambition or even an interest in the genre—his lawyer’s defense won SCOTUS over with the argument that Elonis had never meant for the online rants to be threatening.

Writing the majority opinion, Chief Justice John Roberts avoided the evident First Amendment concerns and argued against the typical standard for threats, that a “reasonable person” would find the content and wording threatening which, in Elonis’ case, was successfully argued at trial.

That decision hands the power in such cases immediately to the accused. What the Supreme Court has just done is arm every angry ex-lover, disheartened fanboy, or plain old troll with the ability to define their threats as something harlmess. Locating and prosecuting people for threatening activity online is already immensely difficult and requires a lot of devotion from the victims. To give trolls the ability to say “just kidding” and get away with any level of hate speech is to empower people to be more brutal online than they already are.

What the Supreme Court has just done is arm every angry ex-lover, disheartened fanboy, or plain old troll with the ability to define their threats as something harmless.

In this case, Elonis’ lawyers defined his communications as artistic and “therapeutic,” not meant to threaten or intimidate anyone. But these were not the mid-level rants we all go through when angry at an ex-employer or ex-lover. Elonis was using Facebook as a place to intimidate his ex-wife especially and spread fear. If these were never meant as a message to his ex-wife, why did he post them in a public atmosphere where he could be certain they would be seen by the target of his outrage?

Even if he did feel his rants were protected under the First Amendment, it’s clear these two instances alone should have proven to Elonis his speech was threatening to others. However, the Supreme Court has decided he and every other stalker online can care even less than they do currently about the opinions of others.

“Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state,” wrote Chief Justice Roberts. While acknowledging the posts were “crude, degrading and violent” Roberts reiterated “wrongdoing must be conscious to the criminal.”

Except the law had already snuck into Mr. Elonis’ life in respect to his violent online speech. He had been fired from an amusement park job for threatening his co-workers (to which he threatened to kill more co-workers) and a separate judge had granted his ex-wife a protection-from-abuse order over the threats. In response to the PFA, Elonis wrote on Facebook: “Is it thick enough to stop a bullet?”

The conviction came as no surprise to Elonis, who often put disclaimers around his supposed rap lyrics in an attempt to protect his hate speech under the umbrella of the First Amendment.

Call it the “No Offense” doctrine: Say whatever you’d like online but be sure to add “no offense.” Elonis and the Supreme Court have given a very powerful tool to those who make threats online, a community that already peddles violence with impunity.

In response to the PFA, Elonis wrote on Facebook: “Is it thick enough to stop a bullet?”

Last fall saw the rise of Gamergate, a community of nerds angry at female gaming journalists for supposed instances of bias. Many of these journalists, including most famously Anita Sarkeesian, received regular rape and death threats from trolls looking to suppress their voice. It’s a movement that, as it’s died out, has become only more extreme and has ended with few prosecutions.

Online threats are very hard to prosecute in general. For one, victims and lawyers must be sure they can identify the authors of such threats, a process that typically means requesting private user data from the site that hosts the communication. As those targeted by a harassment campaign can attest, this is never an easy accomplishment as the trolls can always make new accounts.

Secondly, police have to prioritize resources when considering what cases are worthy of investigation. “Is a rape threat on Twitter more urgent than a real-life stalker or online fraud?” asks the Guardian’s Charles Arthur and Jemima Kiss.

The Supreme Court has effectively told victims and social media companies they are on their own. By putting the focus of the federal law on the intent of the abuser, SCOTUS is asking prosecutors and victims to read the minds of those behind threats, a task that can be made all the more impossible when you can’t fully identify your abuser or are being targeted by a campaign.

The decision ignores the very real likelihood that threats like those coming from Elonis are often followed by real-world violence. It stands to make the Internet even more filled with hateful animus than it already is, which is the opposite direction in which anyone would like to go. 

Gillian Branstetter is a social commentator with a focus on the intersection of technology, security, and politics. Her work has appeared in the Washington Post, Business Insider, Salon, the Week, and xoJane. She attended Pennsylvania State University. Follow her on Twitter @GillBranstetter

Photo via Jeffrey/Flickr (CC BY 2.0)

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*First Published: Jun 2, 2015, 4:04 pm