When Gilberto Valle (a.k.a. the "Cannibal Cop") walked free last month after an appeals court exonerated the former NYPD officer on charges of conspiring online to abduct, torture, cook, and eat female victims, I commended the court's decision - but with some qualifications. The judge freed Valle on the grounds that it could not be proven that he intended to carry out any of his elaborate cannibal fantasies, even though he had illegally tracked and followed real women using a police database.
I argued Valle's online speech in this context certainly amounted to violence, but not criminality. Some speech is violent and terrifying, but it is constitutionally protected nonetheless, which is rightful lest we stumble down a slippery slope of censorship through criminalizing speech.
It seems plain that if the Cannibal Cop's expressions of desire to watch a (non-consenting) woman suffer and die as she was cooked alive on slow heat - all while he was stalking very real, unwitting women - are legal, then so, too, are the violent Facebook posts-cum-rap lyrics of Anthony Elonis. Today, the Supreme Court will hear Elonis' case, which questions whether aggressive social media posts can be read as legitimate threats of violence, and thus treated as criminal.
Elonis has argued that his posts were an expression of rage, but as art (rap) not threats. His attorneys have argued, fairly, that Elonis' descriptions of wanting to murder his estranged wife (and schoolchildren, and an FBI agent) constitute no more of a threat than Eminem's violent lyrics in which he appeared to threaten the life of his wife, Kim Mathers. This First Amendment case is significant, particularly for social media, because it has the potential to change no less than the legal understanding of what constitutes a threat.
In terms of precedent setting, the justices could do much good by asserting that the 'objective' reading be the legal standard in determining threat.
The considerations have a philosophical bent. The justices will not simply ask whether it is protected artistic expression for Elonis to post on Facebook the alleged lyrics, about his ex-wife, "I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." The core legal debate will be over whether a threat resides in the author's subjective intent, or rather something like an objective reading. More specifically, Elonis, like Valle, is staking his defense on the claim that it can't be proven that he intended his message to threaten the individuals he mentioned.
The prosecutors, meanwhile, argue that intent is not the key here, but whether a "reasonable" observer (that perennial, fictitious everyman of legal propositions) would see Elonis' words as genuinely threatening. In terms of precedent setting, the justices could do much good by asserting that the "objective" reading be the legal standard in determining threat. Such a ruling would help put an end to the impunity found by those who make violent threats and hide behind the claim, "I never intended to carry them out."
A legal standard that still considered the subjective intent of threatening language, but also privileged the threatening affect of violent language in the real world (the so-called objective reading), would do greater justice to the many victims of vicious online threats. To be sure, were the justices to decide that an objective reading of threatening language be the legal standard, it would not mean that Elonis should be found guilty by these standards. After all, a reasonable reading of his Facebook posts could well permit that his violent rants were, "objectively," an expression of rage, sans actual threat. In this way, free speech and artistic expression - including the vicious and the violent - remains protected, but an understanding is inscribed into law that threats to do not live and die with the intentions of their authors, but resonate harmfully in cyberspace and meatspace, too.
Indeed, a district court may have determined that Valle never in fact intended to be a cannibal cop, but the court of public opinion rightly saw the potential violence in his online speech, with or without his gruesome intent. Crucially, it does not de facto criminalize violent speech to legally diminish the significance of authorial intention. Such a ruling would recognize that threatening language can be an act of violence in and of itself, felt as torment and terror.
Indeed, it didn't really matter that at the end of his track, "Kill You," in which Eminem threatened to do just that to a number of "bitches," the rapper laughs, "Ha, ha I'm just playing ladies." What mattered is that Eminem's lyrics were read as lyrics, not threats. Similarly, it should matter how Elonis' Facebook posts can be reasonably read, not what he can protest to intend. There is a catch, though, to relying on a standard of objective reasonableness to determine whether violent language does or doesn't constitute a threat. Namely, while this is a preferable legal framework, philosophically, it is questionable whether our current legal system can be trusted to represent "reasonable" judgement. An important initial proof of this would see Elonis exonerated, on objective grounds.
Follow Natasha Lennard on Twitter: @natashalennard
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