Civil Liberties and Constitutional Rights

On Civil Liberties Groups, Threats and Free Speech (A Further Thought on Elonis)

By Benjamin Wittes
Tuesday, December 2, 2014, 6:56 PM

I might react to the Elonis case a bit less stridently than I did last night had I not recently been involved in a horrid case of online threats directed at someone I know over material she wrote for a website. I'm not going to detail the incident here, since that would risk reigniting the firestorm directed at this person, whom I'm also not going to name. Suffice it to say that a young woman wrote an article; a fire hose of violent bile turned on her, mostly on Twitter; and she, her employer, and the website alike had to take steps to ensure her safety. She was scared. Her family was scared for her. Nobody quite new how seriously to take it.

This incident, for the record, was far less vile and threatening than what Anthony Elonis did to his estranged wife. Unlike in the Elonis case, the threats were not all that specific. They came from strangers and could be interpreted more as calls for violence than as threats to do violence. And they were not sustained. Yet they were still scary, quite beyond what I think one should have to tolerate in order to express one's opinion.

It is with that background that I read with something approaching rage the declaration by the ACLU and other civil liberties groups in an amicus brief before the Supreme Court in Elonis that "First Amendment principles compel the conclusion that subjective intent to threaten is an essential element of any true threat."

The concern, of course, is for the innocent expression that merely could be construed as threatening by a reasonable person---issued by someone not actually intending to do any harm. Maybe, for example, the person who responded to the woman described above by tweeting at her, "Someone take this bitch out" to 50,000 of his closest friends, or the person who tweeted at her, "I hope you're raped to death and have your head hacked off. . ." and went on from there.

Note that under the ACLU's proposed constitutional standard, it would not be enough to have the subjective intent to harm someone when you threaten her. The First Amendment would be understood to require proof beyond a reasonable doubt that you had that subjective intent. So you could actually issue a large number of threats, as long as you masked them behind some plausible sort of cover the state was unable to disprove. 

Here are some things you could probably do:

  • Tweet a bomb threat to a specific building if you could claim later to have been joking and prosecutors could not prove that you were not.
  • Send a dead fish wrapped in newspaper to a public figure, as long as you could claim it was a protest against bad water quality in the Chesapeake Bay.
  • Send a picture of a severed pig's head to a Muslim who writes things you don't like (I'm not making this one up; it really happened to the writer mentioned above), just make sure to claim you're merely expressing distaste for Islam.

You get my point. The standard of First Amendment protection the civil liberties groups are urging here is one that turns the couched threat presumptively into a non-threat unless prosecutors can prove beyond a reasonable doubt the speaker's intent to threaten. In the case of Elonis, the ACLU notes that a reasonable jury charged in what it regards as a constitutional fashion "might or might not have concluded that [the statements he made on Facebook] also constituted a threat in context." The trouble is that the object of threats does not necessarily have insight into the details of people's actual intent. As was the writer when the incident described above took place, the victim of the threat is left guessing. Is the person who tweets the pig's head merely having a good wholesome bit of Islamophobic fun or does that person actually means to do violence?

We criminalize threats because the burden of that question in a free society should not rest on the victim. When Don Corleone looks you in the eye and tells you it's "an offer you can't refuse," you don't actually know whether he would kill you if you just walked away. But the act can be a crime anyway, because you shouldn't have to take a risk with your life to find out. I don't see why the Elonis case is any different just because the venue is Facebook.