In a recent Supreme Court ruling on Jun 1, 2015, the judges overturned the conviction of Anthony Douglas Elonis, or as he prefers to be known as, “Tone Dougie.” He was convicted in 2010 by the state of Pennsylvania for sending threatening messages through Facebook in the form of interspersing his wife into comedy sketches and rap lyrics. Elonis was charged with five counts of violating 18 U.S.C § 875(c), and was indicted on four counts.
875(c) reads as
“any communication containing any threat… to injure the person of another.”
Elonis requested a perfectly reasonable jury instruction that the government needs to prove what he said constitutes a “true” threat. This request was of course, denied by the district court with the following justification:
“A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.”
Read this text very carefully. This does not ask if a reasonable person would find it threatening. This asks if a reasonable person, assumes another person would find it threatening, the other person in question being the one who was at the delivery end of the threat. Of course anyone could assume this person would find it threatening, why the fuck else would you be asking this question if the person who alerted the authorities didn’t find it threatening in the first place?
Also, note the “in a context” part is bullshit right off the bat, because this was the Facebook post that resulted with him being charged.
“Hi, I’m Tone Elonis. Did you know that it’s illegal for me to say I want to kill my wife? . . . It’s one of the only sentences that I’m not allowed to say. . . . Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife. . . . Um, but what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. . . . But not illegal to say with a mortar launcher. Because that’s its own sentence. . . . I also found out that it’s incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room. . . . Yet even more illegal to show an illustrated diagram. [diagram of the house].
This may sound familiar, because this is the sketch I previously mentioned, where he traded the world “President” for “My wife” and “Television” with “Facebook.” It’s nearly verbatim with the sketch from the Whitest Kids You Know titled “It’s Illegal to say…”, meaning the context of this threat is immediately identifiable as comedic. Watch for yourself.
After this, his ex-wife filed a three year protection-from-abuse order (restraining order). To which he returned to Facebook with…
“Fold up your [protection-from-abuse order] 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’ll add zeros to my settlement . . . And if worse comes to worse I’ve got enough explosives to take care of the State Police and the Sheriff ’s Department.”
This was used to charge him again, this time for threatening police. First all of, asking her if a folded sheet of paper could stop a bullet is a question, not a threat, legally speaking. Secondly, for the police to charge him with the belief of an actionable threat, he needs to actually be able to carry it out. Meaning, the police needs to have reason to assume he has explosives, or the ability to produce explosives. This falls into the original problem of, of course the police find it threatening, why the fuck else would we be here?
While I will defend this guy’s right to say this monstrously stupid bullshit, it doesn’t mean I wouldn’t punch him if he came at me this way. Then again, I just hate white guys who like rap.
I’m actually surprised this charge didn’t stick.
“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?”
This one, even if there is a comedian or rapper who said it first, is indefensible.
The only dissenting judges were Samuel Alito and Clarence Thomas. Judge Thomas concluding neither the plaintiff nor defendant should be the one determining if the language was threatening, as the obvious bias both sides would have. I agree in part, however, it should be the plaintiff’s role to prove it’s reasonable intent. Alito in part confirms the ruling and in part dissents, in which he makes a very valid point.
“The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess. This will have regrettable consequences.”
While Alito agrees on the ruling in a legal context, he believes the court needs to be clearer on what the jury instructions should be to determine not only what suffices a true threat, but also what the definition of a threat is, which is something 875(c) does not do, leaving the definition hyperbolic. His dissent is similar to Thomas’, falling on technical grounds instead of legal, and both finding the ruling to vague in its definitions.
Implications For GamerGate
While absolutely nothing in this case directly hits GamerGate, the shockwave certainly will. Ultimately, what this does is shift the burden of proof from the accused to the accuser. This is a beginning of a slow reversal back to innocent until proven guilty. Perhaps this will make the less initiated more skeptical toward claims of online harassment. This certainly hampers any attempt congresswoman Katherine Clark has to making the FBI take a greater interest in alleged threats, particularly when it’s on them to actually prove something.
However, with judge Alito’s words in mind, it could actually make a conviction easier. While the defendant for this particular case is free to go, this ruling leaves the lower courts with no instruction, allowing for negligence to suffice on cases where it need not apply, i.e. trolling someone on the internet who is a pathological liar.
With that being said, I’ll stop just short of saything this is a win for free speech. This case needs to be reviewed, and just as judge Alito says, they need to clarify their reasoning. For now, let’s just see how this unfolds.