A threat is still a threat if you make it on Facebook

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“Did you know that it’s illegal for me to say I want to kill my wife?” That question, posed by Anthony Elonis on Facebook when his ex-wife obtained a protection-from-abuse order after he made a string of violent threats against her on the social media site, was the focus this week of a Supreme Court case with potentially far-reaching implications for how online speech is regulated.

At issue is whether Elonis, who was sentenced to 44 months in prison for his threatening statement (which he claims were meant to imitate Eminem, in pursuit of his own rap career) should be charged because his ex-wife felt threatened. Elonis (and the ACLU) believe it is the author’s intent that matters most; Elonis says he never meant to make his ex fear for her life, despite saying he was “not going to rest until your body is a mess, soaked in blood and dying from all the little cuts,” amongst other vile diatribes.

Threats like these are unfortunately a common aspect of online speech, a problem recently illuminated by the Gamergate scandal. Numerous female critics of the movement received threats of rape and murder on a regular basis and were left with little repercussion to stop the onslaught—as the Guardian writes, police have to ask themselves whether a rape threat on Twitter is more deserving of their time than an actual rape. Far from mere trash talk, online threats pose as real a danger as threats delivered offline and hold just as little First Amendment privilege.

While free speech activists fear the Elonis decision may regulate “innocent speech” online, it’s important to understand that in no way is Elonis vague within his posts. All on his Facebook wall, Elonis threatened his wife on numerous occasions, threatened an employer (for which he was fired), and promised to commit “the most heinous school shooting” at a local kindergarten. That last post earned him a visit from an FBI agent, whom he would also proceed to threaten on Facebook.

These were all direct threats at specific people and locations. These are not the emotional rants we’re all akin to making, whether we’re going through a divorce or unhappy with our cable service. Nor is this fantasy wordplay: Rather than confirming Elonis’ story, the context and intent all but disprove his assertion that he never meant to scare his ex-wife. The language is clear, succinct, and looks to any reasonable person like the ravings of a violent and dangerous individual.

In fact, such rhetoric is very common in cases of domestic abuse, but its ubiquity should not make it less threatening. In a brief provided to the Court for this particular case, the National Network To End Domestic Violence points out well over half of domestic partners who receive threats much like those made by Elonis are then victimized physically. In that same report, NNEDV cites a study showing that percent of domestic abuse victims faced threats and stalking through social media.

Which is to be expected: Our lives follow us to the Internet, for better or worse. But in the same way Elonis would be charged with criminal threats or even assault in some states if he had said these things on the street, the First Amendment does not protect violent speech simply because it came out of your keyboard rather than your mouth.

Except, of course, when it does. Earlier this fall, the infamous “Cannibal Cop” of the NYPD— who attracted headlines last year after online writings depicting a plan to capture, cook, and eat women came to light—was released from prison after an appeal successfully argued the plans were merely fetish writings. Much like Elonis’ argument, the idea such highly detailed plans were just part of a sexual fantasy raises many free speech concerns. Slate’s Daniel Engber called Valle’s prosecution “thought crimes” and that others like it “show how hard it is to find the bleeding edge between thought and action.”

Where Valle’s and Elonis’ cases differ, though, is the core of the debate the Supreme Court faces, which is the question of intent. After his release from prison, Valle argued that he was incapable of a violent act and argued his fantasies were the result of a mental illness. “What I needed was help, not prosecution,” he said. The communications were mostly held on Dark Fetish Net, a site devoted to the fringes of sexuality, and jurors in Valle’s initial trial only became concerned after learning he had sent physical photos and letters to another fetishist.

That is a massively important detail with huge implications: The turning point for a jury that poured over what the judge called “material that degrades the human spirit and corrupts the human soul” was Valle’s breach into offline life. They, much like the appeals court that would free Valle, were fully willing to respect his online existence as a lionizer of cannibalism. As one juror told the Daily News about Valle’s snail-mail communications, “The majority of what we were looking at we felt was fantasy. I think like an addict needs a larger and larger dose, he was needing things that were more and more real and he was progressing.”

While Elonis has kept his threats on social media, he is also verging on the point Valle’s initial jury found worthy of prosecution. His attacks are not fantasy writings on a fetish website, but active responses in a public space. When his former sister-in-law posted a photo on Facebook of his children at a Halloween costume shop (to which his ex-wife responded), he replied that his son should Trick-or-Treat as “matricide” and delighted in the idea of “her head on a stick. When she received her restraining order, he sent her a message asking if the order was “thick enough to stop a bullet.”

The context here is not dressed in much more than Elonis’ supposed status as an aspiring rapper. This aspect of the case the Supreme Court analyzed with scrutiny; Chief Justice John Roberts quoted lines from Eminem’s song “Bonnie & Clyde ‘97” (in which the famed rapper narrates hiding his wife’s slashed body to his young daughter) to the prosecutor, basically asking whether Mr. Mathers was free from prosecution because of his fame.

Roberts’ incredulity is not unwarranted: Recent years have seen numerous cases surrounding violent rap lyrics ending in acquittal. Much like Elonis, Cameron D’Ambrosio attracted attention after posting a vicious rap verse on Facebook for which he spent a month in jail, only to have a grand jury reject his indictment.

A recent phenomenon of rap lyrics as evidence for drug or murder charges has free speech and civil rights activists worried, especially considering the high level of focus this brings on the lives and culture of young African-American men—a group already subjected to extreme prejudice within the judicial system. As one professor of criminal law pointed out to the Baltimore Sun, a director of violent movies would not face the same scrutiny.

As Justice Samuel Alito responds, however, “this sounds like a road map for threatening a spouse and getting away with it.” Elonis had no active participation in the rap community and, according to his ex-wife, never showed much interest in rap as a genre. Making what would otherwise be a directed threat at a former spouse rhyme does not magically make it not a threat.

The underlying difficulty in making this argument, however, is what it means to post anything—a rap, a poem, a violent threat—on social media. The Supreme Court has a well-established rule that artistic expression holds different privileges than regular speech. Because a site like Facebook makes us all producers of content, who’s to say what is free expression and what is, to use the Court’s vernacular, a “true threat?”

Elliot Rodger, the 22-year-old UCSB student who shot and killed six people last May, practically bragged about his plans on YouTube in a disturbing confessional video. Were he arrested before the incident but after the video was posted, could he not have claimed they were mere works of art? Perhaps they were an attempt to expand his acting chops, a career in which he showed more focused interest than Elonis has in rapping (Rodger’s father was a director and his mother an actress and he would often lament in his “Manifesto” about being accepted by the L.A. elite).

Public threats like those made by Elonis and Rodgers need to be taken seriously and, when appropriate, prosecuted. However, it’s also important to recognize the careful line such legal matters ride between regulating true artistic expression and possibly preventing violent attacks. As all content consumers also become content producers, the delineation between art and verbal assault has never been more important. But propping up your violent threats on the Internet does not enter them into some legal ether between the two—in fact, it only magnifies the criminality of Elonis and the untold hordes of online abusers like him.

Photo via dkalo/Flickr (CC BY S.A.-2.0)

Gillian Branstetter

Gillian Branstetter

Gillian Branstetter is a reporter and essayist who specializes in the intersection of technology, LGBTQ issues, and privacy. In April 2018, she joined the National Center for Transgender Equality as a media relations manager.