Like many in the US, I normally consider myself a staunch advocate of free speech and against most forms of censorship. I agree with a previous US court of appeals decision that determined a Facebook “like” was constitutionally protected free speech. As a long-time anti-domestic violence activist, though, I am deeply concerned about the use of social media to harass and abuse others. A decision in favor of Anthony Elonis in Elonis v. United States, expected in summer 2015, will have potentially grievous implications for the safety of persons in abusive relationships.
Elonis was convicted of making threats against his estranged wife, Tara, and also later an FBI agent. He was sentenced to 44 months in prison. He utilized his Facebook page to issue a series of disturbing rants after his wife left him. “There’s one way to love ya, but a thousand ways to kill ya, And I’m not going to rest until your body is a mess, Soaked in blood and dying from all the little cuts. Hurry up and die bitch.”
Concerned that Elonis would act on these threats, Tara sought and obtained a restraining ordering her husband to cease posting threatening or harassing comments or from contacting her directly or indirectly. Anthony persisted posting this comment three days after the court hearing: “Did you know that it’s illegal for me to say I want to kill my wife?” he wrote, explaining, “Now, it was okay for me to say it right then because…I’m just letting you know that it’s illegal for me to say that.” A week later, he posted this: “Fold up your protective order and put in your pocket. Is it thick enough to stop a bullet?” Carrying on, Elonis posted the next day that he intended to “make a name for himself” with “the most heinous elementary school shooting ever imagined. Hell hath no fury like a crazy man in a kindergarten class. The only question is…which one.”
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It was that post which got the attention of FBI agent Denise Stevens, who then visited Elonis at home. He posted this after she left: “Little agent lady stood so close. Took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist, and slit her throat. Leave her bleedin’ from her jugular in the arms of her partner.”
Elonis maintains that he was merely exercising his free speech rights in the same fashion as have many musicians, most notably rap artist Eminem, whose lyrics have expressed fantasies about killing his ex-wife. At issue is whether the judge erred in telling the jury that they should determine whether Elonis’ posts were true threats by using a “reasonable person” standard. In his appeals, Elonis has contended that the jury should have been asked to determine whether Elonis himself actually intended for his words to be threatening, not whether any reasonable person might believe them to be. His attorney notes that Elonis posted disclaimers on his page expressing that he did not intend to threaten his wife, merely to express himself and to entertain.
Federal prosecutor Patrick Fitzgerald, and domestic violence advocates, disagree. They note that the fact that Elonis posted the remarks after Tara obtained a restraining order and posted them without restrictions shows that he was trying to send her a powerful message. Without a doubt, the most lethal time in an abusive relationship is when the victim attempts to end it, as Tara did by first leaving Anthony and then obtaining the restraining order. All of the lethality assessments used by police and domestic violence advocates include questions about the frequency and nature of prior threats. Further, Cindy Southworth, vice president of the National Network to End Domestic Violence, noted that “We have stalking statutes all over the country that are based on a reasonable person versus proving the intent of the stalker or abuser.” A survey conducted by the Safety Net Project at NNEDV found 90 percent of domestic violence programs had victims seeking help for online or digital threats. A 2013 study by the Urban Institute found more than a quarter (26 percent) of youth in a relationship reporting that they had experienced some form of cyber dating abuse in the prior year. Additionally, social media posts have been introduced as evidence in numerous court cases, in particular those regarding domestic violence and stalking.
So far, comments and questions from the justices suggest that they may be learning toward interpreting Elonis’ posts as threatening, with Justices Ginsburg and Alito noting the difficulty of “getting into the mind” of someone who posts something on social media. Although free speech is an important human right, decades of knowledge about the cycle of domestic violence and warning signs of potentially lethal behavior should indeed prompt the Court to rule against Elonis. To do otherwise undermines all that we know about abusive behavior and puts victims in serious jeopardy.