Social media as a crime scene
November 29, 2014 7:49 AM Subscribe
On Monday, the Supreme Court (with a recovering Ruth Bader Ginsburg) will hear argument in Elonis v. United States, a case where a man was convicted for posts and messages on Facebook that prosecutors treated as threats of actual violence. (trigger warning: descriptions of violence)
Slate: In one post, Elonis wrote about smothering his wife with a pillow and dumping her body in a creek so it would look like a rape. In another he wrote: “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.”
Washington Post: “Internet users may give vent to emotions on which they have no intention of acting, memorializing expressions of momentary anger or exasperation that once were communicated face-to-face among friends and dissipated harmlessly,” said a brief filed on Elonis’s behalf by the Student Press Law Center, the Electronic Frontier Foundation and the writers organization PEN. (amicus brief here, pdf)
Third Circuit ruling:
A threat under § 875(c) is a communication "expressing an intent to inflict injury in the present or future." United States v. Stock, No. 12-2914, 728 F.3d 287, 293, 2013 WL 4504766, *3 (3d Cir. Aug. 26, [**12] 2013). It was possible for a reasonable jury to conclude that the statement "the next time you knock, best be serving a warrant [a]nd [*335] bring yo' SWAT and an explosives expert" coupled with the past reference to a bomb was a threat to use explosives against the agents "the next time." Indeed, the phrase "the next time" refers to the future, not a past event. Accordingly, a reasonable jury could have found the statement was a true threat.
SCOTUSblog: We don’t generally think of the Justices of the Supreme Court as especially savvy about technology. They did acquit themselves well last Term, in a case involving whether police need a warrant to search someone’s cellphone after they arrest him. But that may have been easier because they all have cellphones. It is far less likely that any of these nine intensely private public figures are on Facebook or any other form of social media, so it will be interesting to watch them grapple with these issues.
Slate: In one post, Elonis wrote about smothering his wife with a pillow and dumping her body in a creek so it would look like a rape. In another he wrote: “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.”
Washington Post: “Internet users may give vent to emotions on which they have no intention of acting, memorializing expressions of momentary anger or exasperation that once were communicated face-to-face among friends and dissipated harmlessly,” said a brief filed on Elonis’s behalf by the Student Press Law Center, the Electronic Frontier Foundation and the writers organization PEN. (amicus brief here, pdf)
Third Circuit ruling:
A threat under § 875(c) is a communication "expressing an intent to inflict injury in the present or future." United States v. Stock, No. 12-2914, 728 F.3d 287, 293, 2013 WL 4504766, *3 (3d Cir. Aug. 26, [**12] 2013). It was possible for a reasonable jury to conclude that the statement "the next time you knock, best be serving a warrant [a]nd [*335] bring yo' SWAT and an explosives expert" coupled with the past reference to a bomb was a threat to use explosives against the agents "the next time." Indeed, the phrase "the next time" refers to the future, not a past event. Accordingly, a reasonable jury could have found the statement was a true threat.
SCOTUSblog: We don’t generally think of the Justices of the Supreme Court as especially savvy about technology. They did acquit themselves well last Term, in a case involving whether police need a warrant to search someone’s cellphone after they arrest him. But that may have been easier because they all have cellphones. It is far less likely that any of these nine intensely private public figures are on Facebook or any other form of social media, so it will be interesting to watch them grapple with these issues.
> Elonis claimed that the charges against him should be dismissed because you can only violate the law if you intend to threaten someone. And he didn’t have any plans to threaten his ex-wife, the FBI agent, or anyone else: his rap lyrics and “venting” about his problems on Facebook just made him feel better. But if he can be convicted without any intent to threaten anyone, he added, that would violate the First Amendment.
So his defense is basically U SCARED SIS?
posted by The Card Cheat at 8:15 AM on November 29, 2014 [9 favorites]
So his defense is basically U SCARED SIS?
posted by The Card Cheat at 8:15 AM on November 29, 2014 [9 favorites]
From the Slate article (which was written by one of Elonis's lawyers):
posted by jaguar at 8:18 AM on November 29, 2014 [20 favorites]
Elonis claims that you can’t use an objective listener standard when you are dealing with the interpersonal and context-free conversation that takes place in the Wild West of social media. Elonis’ petition for Supreme Court review argues that “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 speakers intended”...That rather seems to go out the window when you're specifically writing about your wife, don't you think? Or claiming to have had bombs on your person during a specific FBI interview that just happened. I understand there's a fuzzy line with a lot of this, but claiming the internet is "context-free" is just ridiculous.
Robert Richards, director of the Pennsylvania Center for the First Amendment at Penn State, argues that on the Internet, the recipient is not the issue anymore; that, unlike a letter, posts on social media may simply be left for anyone to find. In an interview with a Pennsylvania paper, Richards explained that people use social media “to say all kinds of things but they may not be directing it to a particular individual. They’re just venting their feelings.”
posted by jaguar at 8:18 AM on November 29, 2014 [20 favorites]
Technological savvy has nothing to do with it. The question is: What is a threat, and is this one? The answers are very obviously "This" and "Yes." Threatening to kill your wife to your friend in private isn't any better than threatening her to her face; if anything, it reads as more actually conspiratorial, and I would hope the friend would report it to the police and the police would do something.
posted by Sys Rq at 8:31 AM on November 29, 2014 [21 favorites]
posted by Sys Rq at 8:31 AM on November 29, 2014 [21 favorites]
So someone shouting "fire" in a crowded theater is OK because that statement might 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 speakers intended"
or because they
"may not be directing it to a particular individual. They’re just venting their feelings.
Right...this argument holds together like warm soup.
As much as I am a fan of anonymity and privacy online, if you are dumb enough to post a death threat on a non-anonymous account, I see no reason the First Amendment should protect you from prosecution.
posted by Salvor Hardin at 8:31 AM on November 29, 2014 [6 favorites]
"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 speakers intended"
or because they
"may not be directing it to a particular individual. They’re just venting their feelings.
Right...this argument holds together like warm soup.
As much as I am a fan of anonymity and privacy online, if you are dumb enough to post a death threat on a non-anonymous account, I see no reason the First Amendment should protect you from prosecution.
posted by Salvor Hardin at 8:31 AM on November 29, 2014 [6 favorites]
Guy's an asshole, but Eminem went way further and no-one convicted him.
Also, this guy did just what McNulty does in The Wire with the 'hypotheticals'. Kima is bang on.
posted by topynate at 8:31 AM on November 29, 2014 [6 favorites]
Also, this guy did just what McNulty does in The Wire with the 'hypotheticals'. Kima is bang on.
posted by topynate at 8:31 AM on November 29, 2014 [6 favorites]
Perhaps Mr. Elonis, and others like him, will learn to express their feelings without threatening to kill people. Is that so hard? If he had posted this as a letter on his gym's bulletin board would it not have been a threat? I hope SCOTUS smacks down everybody on the defense team hard for wasting the Court's time.
posted by Johnny Wallflower at 8:35 AM on November 29, 2014 [28 favorites]
posted by Johnny Wallflower at 8:35 AM on November 29, 2014 [28 favorites]
Writing exercise: express all of your threats in the past tense.
posted by StickyCarpet at 8:35 AM on November 29, 2014 [5 favorites]
posted by StickyCarpet at 8:35 AM on November 29, 2014 [5 favorites]
It's interesting to me that the Supreme Court even grant cert on this, given the Third Circuit's pretty strong ruling.
posted by roomthreeseventeen at 8:36 AM on November 29, 2014 [3 favorites]
posted by roomthreeseventeen at 8:36 AM on November 29, 2014 [3 favorites]
Slate quotes him: "I’m willing to go to jail for my constitutional rights."
I don't see why he can't be accommodated.
posted by fredludd at 8:39 AM on November 29, 2014 [31 favorites]
I don't see why he can't be accommodated.
posted by fredludd at 8:39 AM on November 29, 2014 [31 favorites]
I just hope that whatever precedent gets made here doesn't end up harming Tiny Doo, a rapper who is facing prosecution for conspiracy because it's alleged that the activity of a criminal street gang made his music more popular, and thus he benefited from criminal activity.
Mr. Elonis is entitled to the best defense his appellate lawyers can give him. But I think this is a terrible test case for the intersection of the First Amendment and criminal threats law. And I worry that a precedent created in this case is going to harm many future defendants who try to mount First Amendment defenses to criminal charges brought against them.
posted by decathecting at 8:54 AM on November 29, 2014 [11 favorites]
Mr. Elonis is entitled to the best defense his appellate lawyers can give him. But I think this is a terrible test case for the intersection of the First Amendment and criminal threats law. And I worry that a precedent created in this case is going to harm many future defendants who try to mount First Amendment defenses to criminal charges brought against them.
posted by decathecting at 8:54 AM on November 29, 2014 [11 favorites]
This will have no impact on that rapper, who is being charged with benefiting from his gang membership rather than with making threats.
posted by jpe at 9:11 AM on November 29, 2014
posted by jpe at 9:11 AM on November 29, 2014
"terroristic threat"
Confusingly, this seems to mean, in the law, threats of personal violence, unrelated to the concept of "terrorism".
posted by thelonius at 9:17 AM on November 29, 2014 [1 favorite]
Confusingly, this seems to mean, in the law, threats of personal violence, unrelated to the concept of "terrorism".
posted by thelonius at 9:17 AM on November 29, 2014 [1 favorite]
Singing a song about crime in the abstract is so far away from posting fantasies about the murder of a specific person you actually know, though.
posted by showbiz_liz at 9:43 AM on November 29, 2014 [15 favorites]
posted by showbiz_liz at 9:43 AM on November 29, 2014 [15 favorites]
From the SCOTUSblog link:
The Supreme Court has held that the First Amendment also does not protect “true threats,” but it has not specifically said how courts should decide what is (or is not) a “true threat. This case could give it that opportunity.
In his briefs at the Supreme Court, Elonis argues that a “threat” by its very nature requires an intent to cause fear. Because the whole point of a crime, he says, is that the defendant meant to do something wrong, the Court has interpreted criminal laws as requiring a wrongful intent even when they did not explicitly do so. Making it a crime to threaten someone even if you didn’t intend to threaten them, he contends, would cause people not to speak at all, because they would be worried about whether they could go to jail based on a jury’s possible misinterpretation of their comments. This is particularly true, he concludes, when you are talking about alleged threats on social media and email, where nuance and tone matter so much and it’s so easy to misconstrue what someone says.
The federal government counters that, as the trial court in this case instructed the jury, courts should determine whether something is a “true threat” by looking at whether an average person would interpret the statement as reflecting a serious intent to harm someone. The government emphasizes that courts and juries can and should look at the context in which the alleged threat was made, and at the reactions of the people who heard the alleged threat, but they should not consider whether the defendant himself actually intended to threaten. This, the government explains, is because even if Elonis didn’t intend to threaten his ex-wife or the FBI agent, they were still afraid and their lives were still disrupted: the First Amendment doesn’t protect him even if he knew that he didn’t mean to threaten them.
So I guess they are going to have to define "true threat."
The hell of it is, you know and I know and the chair knows that this asshole wanted to make his ex afraid. He might even have eventually escalated to real violence; such a thing is not exactly uncommon after a divorce.
But then: free speech. It's not like the Supremes have made us all feel good about our protections under the constitution the last few years, unless we are large corporations. I understand the fear of a ruling that is then used to suppress what should be constitutional dissent.
On the other hand, I would never post hate rape/murder fantasies on FB about anybody, even if I thought they deserved it, if only because if they ever did come to harm, I would not want to be Suspect No. 1. I certainly wouldn't do it if I were their ex and the co-parent of their children. The fact that someone does so is a bright red flag that they either feel massively entitled to threaten others with impunity, or have ceased to care about the possible consequences of their actions.
posted by emjaybee at 11:12 AM on November 29, 2014 [8 favorites]
The Supreme Court has held that the First Amendment also does not protect “true threats,” but it has not specifically said how courts should decide what is (or is not) a “true threat. This case could give it that opportunity.
In his briefs at the Supreme Court, Elonis argues that a “threat” by its very nature requires an intent to cause fear. Because the whole point of a crime, he says, is that the defendant meant to do something wrong, the Court has interpreted criminal laws as requiring a wrongful intent even when they did not explicitly do so. Making it a crime to threaten someone even if you didn’t intend to threaten them, he contends, would cause people not to speak at all, because they would be worried about whether they could go to jail based on a jury’s possible misinterpretation of their comments. This is particularly true, he concludes, when you are talking about alleged threats on social media and email, where nuance and tone matter so much and it’s so easy to misconstrue what someone says.
The federal government counters that, as the trial court in this case instructed the jury, courts should determine whether something is a “true threat” by looking at whether an average person would interpret the statement as reflecting a serious intent to harm someone. The government emphasizes that courts and juries can and should look at the context in which the alleged threat was made, and at the reactions of the people who heard the alleged threat, but they should not consider whether the defendant himself actually intended to threaten. This, the government explains, is because even if Elonis didn’t intend to threaten his ex-wife or the FBI agent, they were still afraid and their lives were still disrupted: the First Amendment doesn’t protect him even if he knew that he didn’t mean to threaten them.
So I guess they are going to have to define "true threat."
The hell of it is, you know and I know and the chair knows that this asshole wanted to make his ex afraid. He might even have eventually escalated to real violence; such a thing is not exactly uncommon after a divorce.
But then: free speech. It's not like the Supremes have made us all feel good about our protections under the constitution the last few years, unless we are large corporations. I understand the fear of a ruling that is then used to suppress what should be constitutional dissent.
On the other hand, I would never post hate rape/murder fantasies on FB about anybody, even if I thought they deserved it, if only because if they ever did come to harm, I would not want to be Suspect No. 1. I certainly wouldn't do it if I were their ex and the co-parent of their children. The fact that someone does so is a bright red flag that they either feel massively entitled to threaten others with impunity, or have ceased to care about the possible consequences of their actions.
posted by emjaybee at 11:12 AM on November 29, 2014 [8 favorites]
Singing a song about crime in the abstract is so far away from posting fantasies about the murder of a specific person you actually know, though.
That doesn't stop prosecutors from trying, though: Legal Debate on Using Boastful Rap Lyrics as a Smoking Gun
posted by RobotVoodooPower at 11:13 AM on November 29, 2014 [1 favorite]
That doesn't stop prosecutors from trying, though: Legal Debate on Using Boastful Rap Lyrics as a Smoking Gun
posted by RobotVoodooPower at 11:13 AM on November 29, 2014 [1 favorite]
I agree with the above, but like roomthreeseventeen, I'm baffled as to why the Supreme Court would waste their time on this, given the clear and seemingly strong Third Circuit decision, which any reasonable person would agree with.
Unfortunately, like almost anything else in this world, many actions by our three branches of government can best understood by asking cui bono? In this case, you might think that it is felt important to have an unambiguous SCOTUS decision establishing that you can go to jail for threatening speech on the internet.
Regardless, it seems inevitable that the decision will be upheld, and this creepy terroristic bully will justly languish in jail, and who could argue with that?
posted by lupus_yonderboy at 11:15 AM on November 29, 2014
Unfortunately, like almost anything else in this world, many actions by our three branches of government can best understood by asking cui bono? In this case, you might think that it is felt important to have an unambiguous SCOTUS decision establishing that you can go to jail for threatening speech on the internet.
Regardless, it seems inevitable that the decision will be upheld, and this creepy terroristic bully will justly languish in jail, and who could argue with that?
posted by lupus_yonderboy at 11:15 AM on November 29, 2014
> That doesn't stop prosecutors from trying, though: Legal Debate on Using Boastful Rap Lyrics as a Smoking Gun
"Free speech" doesn't mean that your statements can't be held against you later in court when you're charged with something else. This person raps about committing crimes and then later he's charged with more or less those crimes. The argument, "This was only a piece of music" might or not work, but to claim that such material can't be introduced in court at all because it's part of a piece of music is pretty silly.
posted by lupus_yonderboy at 11:24 AM on November 29, 2014
"Free speech" doesn't mean that your statements can't be held against you later in court when you're charged with something else. This person raps about committing crimes and then later he's charged with more or less those crimes. The argument, "This was only a piece of music" might or not work, but to claim that such material can't be introduced in court at all because it's part of a piece of music is pretty silly.
posted by lupus_yonderboy at 11:24 AM on November 29, 2014
"Making it a crime to threaten someone even if you didn’t intend to threaten them, he contends, would cause people not to speak at all, because they would be worried about whether they could go to jail based on a jury’s possible misinterpretation of their comments"
Would cause people not to speak at all? How about simply using language that can't be construed as threatening? Millions of people are able to communicate this way.
posted by stubbehtail at 11:27 AM on November 29, 2014
Would cause people not to speak at all? How about simply using language that can't be construed as threatening? Millions of people are able to communicate this way.
posted by stubbehtail at 11:27 AM on November 29, 2014
Yeah I was thinking how about not threatening to cut up your wife and jerk off on her corpse. Most people seem to manage this without difficulty.
However, I can actually see an argument for not making this sort of thing illegal, in a sense: he said it in public, so now she knows she's in danger. What if he'd known it was illegal and had said nothing? I'm not sure that's a compelling argument, though.
posted by feckless fecal fear mongering at 11:36 AM on November 29, 2014 [2 favorites]
However, I can actually see an argument for not making this sort of thing illegal, in a sense: he said it in public, so now she knows she's in danger. What if he'd known it was illegal and had said nothing? I'm not sure that's a compelling argument, though.
posted by feckless fecal fear mongering at 11:36 AM on November 29, 2014 [2 favorites]
dumb enough to post a death threat on a non-anonymous account
You say that like there's any other kind of account.
posted by indubitable at 11:39 AM on November 29, 2014 [2 favorites]
You say that like there's any other kind of account.
posted by indubitable at 11:39 AM on November 29, 2014 [2 favorites]
Singing a song about crime in the abstract is so far away from posting fantasies about the murder of a specific person you actually know, though.
The lyrics to Eminem's track Kim (named for his then wife). I assume this is what's being referred to. [Trigger warning]
posted by iotic at 11:45 AM on November 29, 2014
The lyrics to Eminem's track Kim (named for his then wife). I assume this is what's being referred to. [Trigger warning]
posted by iotic at 11:45 AM on November 29, 2014
Shouting "Fire!" in a circular firing squad?
posted by hank at 12:07 PM on November 29, 2014 [2 favorites]
posted by hank at 12:07 PM on November 29, 2014 [2 favorites]
Dude should have bought a diary.
posted by GuyZero at 12:35 PM on November 29, 2014 [3 favorites]
posted by GuyZero at 12:35 PM on November 29, 2014 [3 favorites]
Also: Justin Carter is probably going to trial for making a "terroristic threat" on Facebook
This makes me furious every time I read about it.
posted by SpacemanStix at 12:52 PM on November 29, 2014 [1 favorite]
This makes me furious every time I read about it.
posted by SpacemanStix at 12:52 PM on November 29, 2014 [1 favorite]
It's interesting to me that the Supreme Court even grant cert on this, given the Third Circuit's pretty strong ruling.
Well, they are also publicly LOL considering murdering a couple of million people through health care defunding ROFLcopter so maybe it all ties in.
posted by srboisvert at 1:10 PM on November 29, 2014
Well, they are also publicly LOL considering murdering a couple of million people through health care defunding ROFLcopter so maybe it all ties in.
posted by srboisvert at 1:10 PM on November 29, 2014
This seems highly relevant to the Gamergate dudes— the people sending rape and death threats to women in gaming. They'd love it if there was a "lolrapmusic" or "lolfeelings" defense for social media terrorism.
posted by zompist at 1:16 PM on November 29, 2014 [3 favorites]
posted by zompist at 1:16 PM on November 29, 2014 [3 favorites]
Making it a crime to threaten someone even if you didn’t intend to threaten them, he contends, would cause people not to speak at all, because they would be worried about whether they could go to jail based on a jury’s possible misinterpretation of their comments.
You know, I'm actually not worried at all about whether some utterance of mine will be construed as a threat, because I take care not to phrase things so they could be interpreted that way! Even when I'm pissed off!
What's that you say? I was socialized female and as a result I double- and triple- and quadruple-check everything I say and do for how it might be misinterpreted?
Yes, your point being?
[the remainder is left as an exercise for the reader]
posted by Lexica at 1:52 PM on November 29, 2014 [11 favorites]
You know, I'm actually not worried at all about whether some utterance of mine will be construed as a threat, because I take care not to phrase things so they could be interpreted that way! Even when I'm pissed off!
What's that you say? I was socialized female and as a result I double- and triple- and quadruple-check everything I say and do for how it might be misinterpreted?
Yes, your point being?
[the remainder is left as an exercise for the reader]
posted by Lexica at 1:52 PM on November 29, 2014 [11 favorites]
I hope SCOTUS smacks down everybody on the defense team hard for wasting the Court's time.
Personally, I really like defense attorneys. I appreciate the hard work they do in defending people accused of crimes. I like that a defense attorney will sometimes even challenge the constitutionality of the law their client is accused of breaking. It has never occurred to me to think that a defense attorney should be punished for defending a person I don't like, or for questioning the constitutionality of a law I agree with.
posted by ifandonlyif at 2:21 PM on November 29, 2014 [15 favorites]
Personally, I really like defense attorneys. I appreciate the hard work they do in defending people accused of crimes. I like that a defense attorney will sometimes even challenge the constitutionality of the law their client is accused of breaking. It has never occurred to me to think that a defense attorney should be punished for defending a person I don't like, or for questioning the constitutionality of a law I agree with.
posted by ifandonlyif at 2:21 PM on November 29, 2014 [15 favorites]
Police actually taking online threats seriously would be a nice change.
posted by Pope Guilty at 2:32 PM on November 29, 2014 [6 favorites]
posted by Pope Guilty at 2:32 PM on November 29, 2014 [6 favorites]
I'm not too sympathetic to the argument that the right to make death and rape threats online always supersedes the right to not be threatened with death and rape online.
posted by GenjiandProust at 2:54 PM on November 29, 2014 [20 favorites]
posted by GenjiandProust at 2:54 PM on November 29, 2014 [20 favorites]
Making it a crime to threaten someone even if you didn’t intend to threaten them
how does his brain contain logic that warped? expressing thoughts with threatening language in a public forum is threatening someone - the very act indicates the intention - whether he means to follow through on the threats does not change the fact that he made them
posted by kokaku at 2:57 PM on November 29, 2014 [2 favorites]
how does his brain contain logic that warped? expressing thoughts with threatening language in a public forum is threatening someone - the very act indicates the intention - whether he means to follow through on the threats does not change the fact that he made them
posted by kokaku at 2:57 PM on November 29, 2014 [2 favorites]
I'd love love love love love it if this got people to stop making death threats online.
Or if, at the very least, they were actually punished for them. It's one of those things where people seem so obsessed with their ability to say certain things. It's not going to hurt you if you don't say "I'm going to kill you" to a person and don't use slurs in conversation.
posted by No One Ever Does at 3:46 PM on November 29, 2014 [4 favorites]
Or if, at the very least, they were actually punished for them. It's one of those things where people seem so obsessed with their ability to say certain things. It's not going to hurt you if you don't say "I'm going to kill you" to a person and don't use slurs in conversation.
posted by No One Ever Does at 3:46 PM on November 29, 2014 [4 favorites]
I'm pretty free speech absolutist online, but when you have a specific, named target, and specific language (not "I want to kill" but "I'm gonna kill"), then it sure does look like a threat. I'm not surprised the EFF is taking the opposite view, but this seems like exactly the kind of language that you should be punished for.
posted by ThatFuzzyBastard at 4:00 PM on November 29, 2014 [1 favorite]
posted by ThatFuzzyBastard at 4:00 PM on November 29, 2014 [1 favorite]
A Wisconsin man posted on his police department's Facebook page after his house was searched during an investigation, and was arrested for disorderly conduct. An appeals court recently ruled that he was engaging in free speech, rejected the prosecution's argument that he had breached the "fighting words" exception. (Language in opinion is NSFW.)
posted by dhartung at 4:19 PM on November 29, 2014
posted by dhartung at 4:19 PM on November 29, 2014
I'm pretty free speech absolutist online
The older I get, the more difficulty I have seeing any difference between discourse online and off, you know? If it's not okay to say in person, it's not okay online.
posted by feckless fecal fear mongering at 4:42 PM on November 29, 2014 [6 favorites]
The older I get, the more difficulty I have seeing any difference between discourse online and off, you know? If it's not okay to say in person, it's not okay online.
posted by feckless fecal fear mongering at 4:42 PM on November 29, 2014 [6 favorites]
While I understand the sentiment there, those are wrong and the people saying them should be brought to the same kind of justice as the asshat in the post. (With, obviously, severe concerns about how police would treat someone who said 'kill a cop' especially if that someone is a person of colour.)
posted by feckless fecal fear mongering at 5:12 PM on November 29, 2014 [1 favorite]
posted by feckless fecal fear mongering at 5:12 PM on November 29, 2014 [1 favorite]
Yeah, that's a pretty lame attempt at a gotcha. Darren Wilson's status as someone who eluded prosecution doesn't in any way impact his right to live without having his life threatened.
posted by tonycpsu at 5:22 PM on November 29, 2014
posted by tonycpsu at 5:22 PM on November 29, 2014
I'm pretty free speech absolutist online, but when you have a specific, named target, and specific language (not "I want to kill" but "I'm gonna kill"), then it sure does look like a threat.
How about "I would have killed?" Because that's what led to his arrest.
How about "I would have killed?" Because that's what led to his arrest.
These posts earned Elonis a visit from an FBI agent. After the visit, he posted about that encounter too, suggesting in rap lyrics that he had strapped a bomb to his body and would have detonated it if he had been arrested. This post was apparently the last straw for the FBI: a few weeks later, Elonis was arrested and charged …posted by ChurchHatesTucker at 6:15 PM on November 29, 2014 [1 favorite]
Yeah, I am not ok with death threats against Wilson. Or Zimmerman. Death threats don't do any good; they just make your side look bad and generate sympathy for the person you're threatening. Those two in particular already have enough of a martyr complex.
The Wisconsin case is interesting.
Thomas G. Smith posted profanity-laced comments on Facebook that called police officers in Arena racists in July 2012. He posted the remarks in response to a police Facebook posting several days earlier thanking community members for helping detain two black juveniles who were fleeing officers.
According to the lawsuit filed Monday, an officer named Nicholas Stroik saw Smith's comments and deleted them, along with comments from two other people who accused police of targeting black people.
Police then called Smith, who was living in Arena at the time, and asked if he had posted the remarks attributed to him. He told officers he wrote the comments and he meant them. Later that night officers arrested him at his home and took him to jail, the lawsuit said.
Prosecutors later charged him with disorderly conduct and unlawful use of computerized communications. They contended his comments amounted to fighting words, defined by the U.S. Supreme Court as utterances that have nothing to do with the exchange of ideas and can incite an immediate breach of the peace. (emphasis added)
Would "fighting words" be in the same realm as threats like "I'm going to kill you"? I'm not sure these two cases really overlap.
posted by emjaybee at 6:46 PM on November 29, 2014 [1 favorite]
The Wisconsin case is interesting.
Thomas G. Smith posted profanity-laced comments on Facebook that called police officers in Arena racists in July 2012. He posted the remarks in response to a police Facebook posting several days earlier thanking community members for helping detain two black juveniles who were fleeing officers.
According to the lawsuit filed Monday, an officer named Nicholas Stroik saw Smith's comments and deleted them, along with comments from two other people who accused police of targeting black people.
Police then called Smith, who was living in Arena at the time, and asked if he had posted the remarks attributed to him. He told officers he wrote the comments and he meant them. Later that night officers arrested him at his home and took him to jail, the lawsuit said.
Prosecutors later charged him with disorderly conduct and unlawful use of computerized communications. They contended his comments amounted to fighting words, defined by the U.S. Supreme Court as utterances that have nothing to do with the exchange of ideas and can incite an immediate breach of the peace. (emphasis added)
Would "fighting words" be in the same realm as threats like "I'm going to kill you"? I'm not sure these two cases really overlap.
posted by emjaybee at 6:46 PM on November 29, 2014 [1 favorite]
It has never occurred to me to think that a defense attorney should be punished for defending a person I don't like, or for questioning the constitutionality of a law I agree with.
Yeah, I got carried away there. I hope the court scolds Elonis, though.
posted by Johnny Wallflower at 7:01 PM on November 29, 2014
Yeah, I got carried away there. I hope the court scolds Elonis, though.
posted by Johnny Wallflower at 7:01 PM on November 29, 2014
I've got some really bad news for those who see this as a strong tool for ending the harassment of women on the internet.
You're not wrong that in the current internet climate many women are subjected to completely unacceptable threats and harassment, and that that needs to change. Holy Cow! are you not wrong about that.
But I believe you are dangerously mistaken if you believe that an expansion in authorities' power to punish threatening speech will result in significant and widespread gains for women's safety. It might be occasionally used to benefit women of high socio-economic class and privilege, but in reality the tragedy of our current situation is that law enforcement have shown little interest in policing threats against women even when they are direct and immediate and already clearly covered by the laws which are currently available. Hell, in many places the system seems only barely interested in investigating and prosecuting crimes with no First Amendment issue at all, including battery and forcible rape. How much political will do you think exists to protect the average woman from threatening posts on the internet?
Unfortunately this does not mean that an expansion of the ability to criminalize threatening speech will have no effect, but I predict the chief use will be to target minorities, the poor, and political activists who are critical of those currently in power.
The political will to deal with threats against women has to come before the law, or the law will be subverted for other uses. The only way to make the internet a safer place for everyone is for social acceptance of these kinds of threats to go away. And no, unfortunately I don't know how we get to that point, but if you have a good idea sign me up.
posted by Nerd of the North at 8:42 PM on November 29, 2014 [12 favorites]
You're not wrong that in the current internet climate many women are subjected to completely unacceptable threats and harassment, and that that needs to change. Holy Cow! are you not wrong about that.
But I believe you are dangerously mistaken if you believe that an expansion in authorities' power to punish threatening speech will result in significant and widespread gains for women's safety. It might be occasionally used to benefit women of high socio-economic class and privilege, but in reality the tragedy of our current situation is that law enforcement have shown little interest in policing threats against women even when they are direct and immediate and already clearly covered by the laws which are currently available. Hell, in many places the system seems only barely interested in investigating and prosecuting crimes with no First Amendment issue at all, including battery and forcible rape. How much political will do you think exists to protect the average woman from threatening posts on the internet?
Unfortunately this does not mean that an expansion of the ability to criminalize threatening speech will have no effect, but I predict the chief use will be to target minorities, the poor, and political activists who are critical of those currently in power.
The political will to deal with threats against women has to come before the law, or the law will be subverted for other uses. The only way to make the internet a safer place for everyone is for social acceptance of these kinds of threats to go away. And no, unfortunately I don't know how we get to that point, but if you have a good idea sign me up.
posted by Nerd of the North at 8:42 PM on November 29, 2014 [12 favorites]
It seems to me like 'fighting words' is an escalation of dialogue:
"I totally disagree with you and you are wrong and also UltraHitler" = okay
"I am going to punch you in the spleen and then Hitler your pineal gland" = fighting words
Perhaps overly simplistic, but to me as a non-lawyer that seems to illustrate the difference. One is still conversation, albeit heated, while the other seeks to introduce chilling effects.
Which, it seems to me, is sort of the difference here; one mode of communication continues dialogue even if it is emotionally charged. The other introduces physical danger into the dialogue, which is obviously (I hope it's obvious) about gaining the upper hand through fear and not about the marketplace of ideas.
With the caveat of people who know each other and have displayed a pattern speaking in heightened ways as part of their discourse.
posted by feckless fecal fear mongering at 8:46 PM on November 29, 2014
"I totally disagree with you and you are wrong and also UltraHitler" = okay
"I am going to punch you in the spleen and then Hitler your pineal gland" = fighting words
Perhaps overly simplistic, but to me as a non-lawyer that seems to illustrate the difference. One is still conversation, albeit heated, while the other seeks to introduce chilling effects.
Which, it seems to me, is sort of the difference here; one mode of communication continues dialogue even if it is emotionally charged. The other introduces physical danger into the dialogue, which is obviously (I hope it's obvious) about gaining the upper hand through fear and not about the marketplace of ideas.
With the caveat of people who know each other and have displayed a pattern speaking in heightened ways as part of their discourse.
posted by feckless fecal fear mongering at 8:46 PM on November 29, 2014
It might be occasionally used to benefit women of high socio-economic class and privilege, but in reality the tragedy of our current situation is that law enforcement have shown little interest in policing threats against women even when they are direct and immediate and already clearly covered by the laws which are currently available.
Baby steps are still steps forward. And I feel like this is kind of how all civil rights issues move forward; it's never the firework explosive stuff. It's placate the people with the most power and move from there. The only time that 'trickle down' seems to work, is what I'm saying. (What I am NOT saying is that people without power/privilege should wait; it's the huge wave of lots of voices demanding redress that causes change--it just hits the slightly-more-privileged-than-others-first.)
And no, unfortunately I don't know how we get to that point, but if you have a good idea sign me up.
I think the way we get there is to accept that change comes slowly, to welcome any change for the better, but to not be satisfied. "Yes! Good move! And now we have to do this", lather rinse repeat.
posted by feckless fecal fear mongering at 8:53 PM on November 29, 2014 [4 favorites]
Baby steps are still steps forward. And I feel like this is kind of how all civil rights issues move forward; it's never the firework explosive stuff. It's placate the people with the most power and move from there. The only time that 'trickle down' seems to work, is what I'm saying. (What I am NOT saying is that people without power/privilege should wait; it's the huge wave of lots of voices demanding redress that causes change--it just hits the slightly-more-privileged-than-others-first.)
And no, unfortunately I don't know how we get to that point, but if you have a good idea sign me up.
I think the way we get there is to accept that change comes slowly, to welcome any change for the better, but to not be satisfied. "Yes! Good move! And now we have to do this", lather rinse repeat.
posted by feckless fecal fear mongering at 8:53 PM on November 29, 2014 [4 favorites]
(because once you've placated the loudest with the most power, they become part of the structure... which means it's time to placate the next-loudest with the next-most power... and turtles all the way down, in the good way.)
posted by feckless fecal fear mongering at 9:14 PM on November 29, 2014
posted by feckless fecal fear mongering at 9:14 PM on November 29, 2014
"terroristic threat"
Confusingly, this seems to mean, in the law, threats of personal violence, unrelated to the concept of "terrorism".--thelonius
The concept of terrorism always involves causing terror. In recent history a lot of examples have involved people carrying bombs in the Middle East, which I think is causing the word to be incorrectly narrowed to these examples.
Posting threats of personal violence is very much related to the concept of "terrorism".
posted by eye of newt at 9:47 PM on November 29, 2014 [5 favorites]
Confusingly, this seems to mean, in the law, threats of personal violence, unrelated to the concept of "terrorism".--thelonius
The concept of terrorism always involves causing terror. In recent history a lot of examples have involved people carrying bombs in the Middle East, which I think is causing the word to be incorrectly narrowed to these examples.
Posting threats of personal violence is very much related to the concept of "terrorism".
posted by eye of newt at 9:47 PM on November 29, 2014 [5 favorites]
I would expect that when the "Student Press Law Center, the Electronic Frontier Foundation and the writers organization PEN" all wrote a brief to the supreme court, I'd be fully on their side.
So far, this isn't the case.
posted by el io at 12:05 AM on November 30, 2014
So far, this isn't the case.
True, the language of the posts was violent, the brief notes, but the same is true of his hero Eminem, who frequently rapped about violent fantasies involving his ex-wife.Yeah, not a surprise there, thanks a fucking lot you asshole, Eminem. I am surprised that Eminem never got at least a visit from the cops over his threatening lyrics (did he?).
posted by el io at 12:05 AM on November 30, 2014
. the whole point of a crime, he says, is that the defendant meant to do something wrong,
I'm not a lawyer. But isn't this completely wrong, as shown by the existence of manslaughter, criminal negligence, DUIs and the basic premise of "ignorance is no defence"?
posted by the agents of KAOS at 1:18 AM on November 30, 2014
I'm not a lawyer. But isn't this completely wrong, as shown by the existence of manslaughter, criminal negligence, DUIs and the basic premise of "ignorance is no defence"?
posted by the agents of KAOS at 1:18 AM on November 30, 2014
I'm torn on what to think. Some of my friends from way back joke about violence - nothing like this, especially not targeting an individual like this which would be gross. On the other hand, I remember in our youths having long conversations about the craziest way you could harm the president. These were in private, but some bled over to email, and who knows had social media existed at the time, maybe we would have talked about how to train a bald eagle to gouge out Bush's eyes (we were really upset about the Iraq war, okay? ) For us, it was a coping mechanism. It still exists among us today, though to a much lesser degree and I think we're all more careful about how and where we use it, least someone take it the wrong way. But it's just black humor used to cope with feeling small and powerless.
On the other hand, I've had so much physical violence threatened towards me online. Most of it I was pretty sure was a bluff or a rant. But there were times I didn't always know. Okay, this person is probably blowing of steam, but they do know where I live. God, there was one guy in the bbs days that after a not great first date, I declined a second invitation and he flipped his lid in a way that genuinely made me afraid.
I do also wonder how much of that form of venting is the early stages of planning. When does it transition to physical violence? And some of the posts I see on facebook, in comments, every fucking day are filled with really horrible things. Shameless racism to threats of physical violence. But I think that may also be telling that most of those posts are really just venting, because there aren't a majority of people acting on their online threats, and wouldn't dare spew the same kinds of racist rants in polite company (why facebook makes it okay is beyond me).
I think it's a very interesting case, which is probably exactly why scotus wants to hear it.
posted by [insert clever name here] at 5:58 AM on November 30, 2014 [5 favorites]
On the other hand, I've had so much physical violence threatened towards me online. Most of it I was pretty sure was a bluff or a rant. But there were times I didn't always know. Okay, this person is probably blowing of steam, but they do know where I live. God, there was one guy in the bbs days that after a not great first date, I declined a second invitation and he flipped his lid in a way that genuinely made me afraid.
I do also wonder how much of that form of venting is the early stages of planning. When does it transition to physical violence? And some of the posts I see on facebook, in comments, every fucking day are filled with really horrible things. Shameless racism to threats of physical violence. But I think that may also be telling that most of those posts are really just venting, because there aren't a majority of people acting on their online threats, and wouldn't dare spew the same kinds of racist rants in polite company (why facebook makes it okay is beyond me).
I think it's a very interesting case, which is probably exactly why scotus wants to hear it.
posted by [insert clever name here] at 5:58 AM on November 30, 2014 [5 favorites]
I'm not a lawyer. But isn't this completely wrong, as shown by the existence of manslaughter, criminal negligence, DUIs and the basic premise of "ignorance is no defence"?
Depends on the crime. Some crimes are strict liability crimes where it doesn't matter whether or not you intended to commit a crime. But usually those are very minor crimes. One serious crime it applies to, though, is statutory rape where you are guilty even if you had a good faith belief that the victim was over the age of consent. Hell, you're guilty even if they showed you a fake ID saying they were over the age of consent. But that's not true of most serious crimes where you have to have intended to commit the offense.
DUI's, which you mention, are another good example of the few serious strict liability laws. You're guilty of a DUI if you drive intoxicated whether or not you knew you were too intoxicated to drive.
posted by Justinian at 9:43 AM on December 1, 2014
Depends on the crime. Some crimes are strict liability crimes where it doesn't matter whether or not you intended to commit a crime. But usually those are very minor crimes. One serious crime it applies to, though, is statutory rape where you are guilty even if you had a good faith belief that the victim was over the age of consent. Hell, you're guilty even if they showed you a fake ID saying they were over the age of consent. But that's not true of most serious crimes where you have to have intended to commit the offense.
DUI's, which you mention, are another good example of the few serious strict liability laws. You're guilty of a DUI if you drive intoxicated whether or not you knew you were too intoxicated to drive.
posted by Justinian at 9:43 AM on December 1, 2014
Supreme Court Quotes Eminem As It Explores The Difference Between Free Speech And 'True Threats'
posted by ChurchHatesTucker at 10:56 AM on December 2, 2014
posted by ChurchHatesTucker at 10:56 AM on December 2, 2014
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