Photo: Adikos, CC BY 2.0
Before I start this week’s post, I want to take a moment to express my deep grief over the passing of Dr. Kiara Kharpertian. Kiara was an amazing woman, and had the brightest spirit of anyone I have ever met. In every encounter with her I was awed by her kindness, generosity, and passion. I strongly encourage you to read her incredible blog, Words From Ward Four.
One of the most frustrating parts of being a woman is the amount of hate, vitriol, and abuse we’re supposed to just put up with as part of our daily existence. That we are supposed to not only accept, but accept quietly, without complaint, without pointing it out, and certainly without anyone doing anything about it. When something we say (especially something we say on the internet) is met with horrible language and threats, we are A, told that we invited this abuse ourselves by saying A Thing in the World while “knowing that this could happen,” and B, that it is impossible to stop, arrest, or otherwise punish those who say terrible things because it is “the internet,” which is apparently like the Wild West only instead of street duels there are rape threats and doxxing. Since we live in the modern age of unprecedented technology and surveillance, where I’m pretty sure that the government could track me down using solely my pizza preferences, it’s pretty tempting to cry “bullshit” on the idea that something happening on the internet makes it an untraceable crime with no clear intentions. This week, law enforcement proved that it totally can track down those who engage in violent or threatening internet speech; it just seems that in most cases that involve women, it doesn’t want to.
First, some background info. The right to free speech, and the limitations thereof, is one of our most hotly contested and least understood civil issues. In a Jezebel article regarding online harassment, Anna Merlan writes:
The best overall guide we have is the “true threat doctrine,” which defines threats as statements that “a reasonable person would interpret as a real and serious communication of an intent to inflict harm.” But that’s vague, to put it mildly, and it has been inconsistently applied by different courts. Danielle Citron, an attorney and law professor who has called for better enforcement of online harassment laws, says she hopes the Elonis case will clarify what a “true threat” actually means.
“We bend over backwards in the United States—and we should—to protect and provide breathing space for free speech of all sorts: offensive, profane, irritating,” she says. “We want to provide breathing room for public conversation. But when it comes to expression whose raison d’ etre is to silence other people, to ruin reputations, to terrorize, we should be less anxious about silencing that.”
And when Merlan writes that the doctrine has been applied inconsistently… ooh boy, she is not kidding. And in many cases “inconsistently” can be seen as synonymous with “in a way that marginalizes the fears and experiences of women while prioritizing the fears and experiences of police officers who are actually trained to protect themselves.”
Take the case of Anthony Elonis. This charmer was eventually convicted of a federal crime, making threats across state lines. And the threats in this case were some truly disturbing Facebook posts:
Elonis wrote a series of Facebook posts—”rap lyrics,” by his account—in which he fantasized about killing his ex-wife. One said he “wouldn’t rest” until she was dead, “Soaked in blood and dying from all the little cuts.” Later, after she’d gotten a protective order, Elonis wrote: “Fold up your protective order and put in your pocket. Is it thick enough to stop a bullet?”
In addition to fantasizing about killing his ex-wife slowly, he also threatened gun violence towards an elementary school, and even fantasized about killing the female FBI agent who was investigating his threat against the school. Jesus Christ. I’m not sure at what point you go from “seriously psychotic” to “seriously psychotic with no sense of self-preservation,” but I’m pretty sure Elonis passed that point a couple dozen violent fantasies ago. Elonis appealed his conviction, saying that he was exercising his First Amendment rights and that the fantasies he posted were “rap lyrics” from a persona named Tone Dougie. I’m sure that knowing that it was “Tone Dougie” and not her psychopath of an ex-husband that wanted her to die slowly from thousands of tiny cuts really made the former Mrs. Elonis feel much better. Downright safe, even.
The Supreme Court, an august body that values First Amendment rights so dearly that there is a protest-free buffer zone in front of the courthouse and that cameras and video recording equipment are forbidden in the courtroom… voted in favor of Elonis in an 8-1 ruling, with Justice Clarence Thomas dissenting. I find myself on the same side as Justice Clarence Thomas. That is a sentence I have never had to think, let alone write, before. The Supreme Court overturned the appellate court’s ruling, and basically said that prosecutors should have been able to read Elonis’ mind: “But Chief Justice Roberts said a criminal conviction requires more than consideration of how the posts would be understood by a reasonable person (the legal standard lawyers call negligence). Rather, he said, prosecutors had to prove that Mr. Elonis was aware of his wrongdoing.” According to this ruling, it doesn’t matter that Elonis’ ex-wife was terrified of him. It doesn’t matter that she interpreted his violent postings aimed at her as a threat. It doesn’t matter that a reasonable person could have looked at those posts and interpreted them as threats. It only matters if Elonis meant them as threats. To put this into context, “Stand Your Ground” laws allow you to actually shoot and kill someone if they are doing something that you, the victim, reasonably perceive to be a threat. You are allowed to actually end someone’s life based on your reasonable interpretation of the threat presented by that person, whether or not that person intended to be threatening. So the Supreme Court is actually demanding a higher burden of proof in favor of someone who has threatened to murder an FBI agent than it demands in favor of a teenager holding a bag of Skittles.
In some ways, the former Mrs. Elonis was lucky in that her case actually went to trial. In the vast majority of cases, law enforcement officials don’t take online threats seriously enough to investigate, even if they involve threats of rape and murder or an acknowledgement that the perpetrator knows where the victim lives. Women can receive very specific, very violent threats from identifiable sources, and still have the police do nothing. A complete underestimation of the gravity and effects of online threats, a widespread misunderstanding of the internet and its various crevices, and a good, ol’ fashioned belief that any complaining woman is acting hysterically come together in the perfect storm of police Not Giving a Fuck when it comes to online harassment.
Or at least, that’s the case until it is the police who are being harassed.
As Merlan points out, and as we are seeing again recently, the police become miraculously capable of tracking down and stopping harassers when the object of harassment is the police force itself. The FBI and police reacted within a week and within a day, respectively, to various threats against police officers after two NYC policemen were killed. Recently, four Detroit men were arrested for making social media posts threatening cops or praising the shooter in the attack on Dallas police officers. Additional individuals were arrested in Connecticut, Illinois, New Jersey, and Louisiana. While the men in Detroit haven’t been charged yet, the others have been charged with everything from “disorderly conduct” to “public intimidation” to “inciting injury to persons or property.” Suddenly the police understood the internet pretty well.
Now I’m not a legal scholar, and certainly not an expert on the First Amendment. I think it’s pretty clear that I consider online threats to be one of the many exceptions to free speech, but hey, I could be wrong about that. What I’m not wrong about is the fact that it is highly unfair and inappropriate that the police only take online threats seriously, or see them as a crime, when it is the police force itself that is being threatened. As our own dear Richard put it, “If you’re going to go there, you have to go there uniformly or not at all.” If online threats of rape and murder aren’t credible or worthy of criminal charges when they’re aimed at women, they shouldn’t magically become so when they’re aimed at police.
Elle Irise is a regular contributor to This Week In Tomorrow. When she’s not lamenting yet another privilege-of-power-based double standard in our society, she studies gender in popular culture.
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