The Internet is rife with violent talk from blogs to YouTube channels dedicated to dark and twisted fantasies. But when should threats be taken seriously?
The Supreme Court of the United States Monday decided to tackle that question with a free speech case that could change the way we communicate online. A Pennsylvania man, Anthony Elonis was convicted in 2010 for threatening to kidnap and kill his wife on Facebook.
Elonis, who is serving a 44-month sentence, wrote dozens of posts stylized as rap lyrics, which he says mimicked rapper Eminem’s songs that talked about raping and killing his now ex-wife Kim. One post detailed how “someone” could kill his wife with a mortar launcher and get away with it, and another on his sister-in-law’s Facebook wall suggested his son dress up as “matricide” for Halloween using his mother’s head on a stick as a prop, according to court documents. “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,” he wrote in one post.
The case has raised questions not only about how seriously online threats should be taken, but also if those threats can be protected as art. Dark and sometimes violent speech is widely accepted as a part of Internet culture, making it hard to distinguish between something that’s a therapeutic rant or creative expression and true threats.
“How does [one] distinguish between a true threat and an artistic communication?” Timothy Zick, a Constitutional and First Amendment speech law professor at William & Mary University in Williamsburg, Va., told ThinkProgress. “If the threat is set to music, or rapped, can it still be punished? The answer is yes, so long as the applicable standard has been met. Merely setting something to music [or claiming it’s art] does not necessarily save the speaker from prosecution.”
Speech is rarely criminalized, and true threats are tricky to prove. Threats must fit a narrow definition in which the target must feel severe emotional distress and that physical harm is imminent, or that a reasonable person would find the remarks threatening.
Online threats are even murkier. Women and minorities suffer the most online harassment but rarely get results when they raise alarms. Children are also susceptible to the growing problem of cyberbullying, which can have profound impacts on their well-being and has even led to suicide. Social media sites like Twitter have grappled with how to reign in threats of abuse and rape. Even when explicitly violent threats are reported to the police, they’re often not taken seriously and dismissed as jests or empty threats.
Part of the problem is that online and in-person speech are often treated differently because it’s harder to tell a person’s emotions or mindset from a computer. “First Amendment doctrines have generally developed with physical space in mind — speakers and listeners occupying the same space,” Zick said. “This physical proximity influences how things like incitement to violence, threats, and harassment are experienced and treated under free speech doctrines.”
There are three federal laws, and dozens of state laws that can be applied to online speech and largely pertain to cyberstalking, cyberbulling or cyberharassment. But those laws can vary by state and don’t always explicitly tackle Internet or other digital communications, simply tacking on the Web as another avenue to stalk, bully or harass someone.
It can get tricky separating art from intended violence, said Zick, who has asked students to determine whether lyrics in a song are threats written on paper versus spoken during a performance. “That context makes a difference — many students were less sure after listening and viewing the performance — both about whether the artistic elements mattered, and about whether the standards had been met,” he said.
The Supreme Court could decide to err on the side of free speech protection and decide that there has to be proof a speaker intends to harm someone. That would mean people could more freely say what they want online as long as they do not have truly malicious intent. Alternatively, it may determine that a threat may be a crime so long as a “’reasonable person’ would regard the statement as threatening.”
“On the one hand, we don’t want to endanger rap and other artistic forms. On the other hand, we don’t want to allow speakers to disguise threats as artistic performances or utterances,” Zick said.