SCOTUS trolled us yesterday with its decision in the Elonis case..

I went to Pix11 this am to talk some smack about yesterday’s disappointing SCOTUS decision in the Elonis case which is an utterly heartbreaking judgment for anybody who cares about domestic violence.

The case related to a Pennsylvania man who went completely nuts after his wife left him. (uh, yeah, wonder why she left. . . ) On FB, he posted graphic and violent rants about the ways he wanted to torture and murder her. He did the same about his co-workers, a particular female law enforcer, and then detailed a kindergarten class that he was going to shoot up. He was charged under our federal law relating to the interstate transmission of threats to cause bodily harm. These “true threats” are not protected under the 1st Am. The lower courts convicted Elonis because they found that any reasonable person would foresee that his language would be perceived as a threat.  SCOTUS, though, reversed that yesterday, ruling 7-2 that it doesn’t matter how the threat is perceived or how real it seems to those who receive it. Rather, what matters, Roberts said in his majority opinion, is the intent of the threat maker.

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
.  — Anthony Elonis, Facebook status update October, 2010

It will be difficult for prosecutors to prove intent now that it is an element. This decision gives an out to anybody arrested under the law — they can say that the threat to cut their wife up a thousand times to watch her to bleed out was intended as artistic expression or for therapeutic purposes to let off steam. This will make it less likely that federal law enforcers will use the law, that prosecutions will begin, and that offenders will be convicted. Abusers already convicted under it may have those convictions reversed and retrials.  Thanks to SCOTUS, they get the last word now. It also ignores the fact that just because a threat might rhyme or be in haiku (i.e. artistic expression) or be therapeutic for the threat maker (collectively these are identified as some of the now non-criminal intentions behind a threat) that there still isn’t a subjective intent for it to be threatening. SCOTUS completely desecrated the fact that recipients of threats are in the best position to assess how real a threat is.

Fold up your PFA 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
” — Anthony Elonis, Facebook update, November 15, 2010

SCOTUS further dismissed the fact that so many assaults and murders, especially in the domestic violence context, are precipitated by threats. (Read NNEDV’s brilliant, but ignored, amici brief here.  In his mostly dissenting opinion, Alito refers to it.)  With all that said, we still have our state laws, our harassment and stalking laws, restraining orders, etc. It’s doubtful that the FBI and DOJ even use this particular law all that often since they usually cede to local law enforcement on issues relating to domestic violence.  SCOTUS, though, is sending a major message to victims that their safety is unimportant and that deterring scary behavior via reasonable criminal laws is not a judicial priority.  Victims’ experience of frightening is secondary to the intent of the abuser. SCOTUS is promoting meta-gaslighting by recreating a dynamic in which only the abuser’s experience matters.

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?
  — Anthony Elonis, Facebook update, November 16, 2010

It now falls even more upon our gazillionaire social media companies to govern the violence and threats that happen online. As private businesses, they can create whatever rules they want about the communications they’ll accept. And they have the right to ban users for disobeying. There’s no natural right for any of us to be using a given social media product and unlike the government, online service providers can dictate behavioral codes at whim. Tomorrow FB could ban the word “tomorrow” from all user posts, for example. And if you used that word, they could kick you out. Presently in FB’s Statement of Rights and Responsibility, (Note:  its title is misleading.  Users don’t have rights when it comes to conduct.) the dictates re: the speech it allows is far far more narrow than our laws. They ban threats, intimidation and harassment, defamation, anything that is unlawful misleading malicious or discriminatory. They ban password sharing and also convicted sex offenders. Just to name a few of the provisions.

The onus needs to fall on social media not only to create clear policies, but also to respond quickly and effectively to reports by victims, enforce the policies, properly notify users about the policies, and have real consequences for serious infractions — like permanent bans.

It’s also time for our big social media companies to put money toward a “What you say online matters” PSA. Sorta like what big tobacco had to do. Whatever the practical applications of this law, I’m heartbroken by this decision.

The things I want to do to SCOTUS. . . Is that a threat?  I’m not telling.


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