Unintended consequences

The Supreme Court didn’t touch the First Amendment or social media aspects of the charges brought against Pennsylvania resident Anthony Elonis in its 7-2 decision last week, but the debate about the long-term effects of his words and the court’s decision will continue for some time.
Already the justices’ decision is being used in other courtrooms. On June 2, the day after the Supreme Court finally released its decision on the Elonis case, which had been argued in December, the attorney for a man charged with making threatening statements in an email sent to six people associated with a case in family court in Connecticut. Edward Taupier is facing charges of threatening, disorderly conduct and breach of peace last August when he emailed Judge Elizabeth Bozzuto, Connecticut’s chief administrative judge for family matters.

Taupier’s attorney, Rachel Baird, requested and received a continuance to determine whether the Supreme Court’s decision in Elonis might have implications for her client, the Connecticut Law Tribune reports. She told the website that the SCOTUS decision requires that “there must be a showing that a person intentionally made a statement to threaten, not that they made a statement and a person felt threatened. Otherwise, people will have to be very careful about what they say, because someone might take it the wrong way.”

Taupier’s email reportedly said that Bozzuto’s bedroom is just yards from a cemetery and described the possible trajectory of a bullet shot from 250 yards. He also wrote: “They can steal my kids from my cold dead bleeding cordite filled fists as my 60 round mag falls to the floor and I’m dying as I change out to the next 30 rd.” Bozzuto never received the email directly but was sent a screenshot of the message.

Much like the Elonis case – in which Anthony Elonis claimed the angry, violence-filled statements he posted on his Facebook page were rap lyrics (penned under the assumed name Tone Dougie) and not statements of intended action against his ex-wife and former coworkers – Taupier has claimed he was “just venting his frustrations with Bozzuto, the judge in his divorce and custody case,” the law journal states.

Separately, questions have been raised following the Elonis decision last week whether women who have been the target of threats or violent messages have no legal protections.

In a statement released shortly after the Supreme Court’s decision was announced, the National Center for Victims of Crime said it was disappointed with the outcome.

“The Internet is the crime scene of the 21st century,” writes Mai Fernandez, the center’s executive director. “The laws governing social media require swift interpretation to keep pace with the ever-advancing criminal activity in this space. The Justices…missed the opportunity to define the law and left the victims of this case and others in jeopardy.”

Further, the decision “fails to recognize that victims of stalking experience fear regardless of the offender’s intent,” adds Michelle M. Garcia, director of the Stalking Resource Center. “If what constitutes a threat is not clearly defined, our concern is that this ruling provides enormous space for stalkers and abusers to act. Clearly offenders can imply they never intended to harm and as a result will not be held accountable.”

And over at Bustle, a news and pop culture website written entirely by women, associations are being drawn between Elonis’ Facebook posts and the threats and just plain ugly things said to women as part of the ongoing Gamergate.

Many women reported receiving death threats, rape threats, and other scare tactics intended to silence them from speaking out about what they felt was inequality in more technological realms. During a congressional hearing last year, one woman who faced such violent messages said her life had become nearly unrecognizable as a result.

Another high-profile woman who has faced an avalanche of messages, Anita Sarkeesian, gave a speech at the Sydney Opera House during the “All About Women” series, saying in part:

“What I couldn’t say is ‘fuck you.’ To the thousands of men who turned their misogyny into a game, a game in which gendered slurs, death and rape threats are weapons used to take down the big bad villain, which in this case is me. My life is not a game. I have been harassed and threatened for going on three years with no end in sight.”

Bustle writer Jenny Hollander notes that while many of these threats were empty and no violent acts directly taken against women who spoke out, the court’s ruling does not make online harassment legal.

“The ruling could be better explained as not making violent threats automatically illegal—but any kind of violent threat, whether via social media or letter or in person, remains illegal if it could be reasonably described as being an actual threat.” In his Facebook posts, Elonis’ claims that he was only writing rap lyrics instead of a detailed plan to exact revenge against the woman who wronged him led the Supreme Court to rule that juries can determine when speech is metaphorical or “have the clear sinister meaning of a threat.”

For the women who receive such messages, however, “the Supreme Court’s distinction between a ‘real’ threat and a ‘fake’ threat wouldn’t have brought them much comfort – and it doesn’t do a whole lot to protect them in the future,” Hollander says.

For more information on the Elonis case, read here, here and here.

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