My One-Tweet War with Tyrannosaurus Rump

by

J.C. Schildbach, LMHC

It was a glorious day in early October, 2015. It seems a lifetime ago. Or perhaps an alternate universe ago? Definitely a different reality.

Anyway, a Twitter notification popped up on my phone, letting me know that @realDonaldTrump was following me.

Really? The “real” Donald Trump was following me on Twitter?

Assuming it was a parody account, I hopped over to check it out. And Hoe-Lee Ess-Aitch-Eye-Tee—it was really the for-real real Donald Trump following me.

Okay, maybe he let his youngest kid play with his phone. Or maybe his handlers were busy following everybody that fell into his “target demographic” of middle-aged white males. Or maybe it was all a game to get a follow-back and then dump me.  Who knows?

Current events at the time were mostly swirling around the recent Umpqua Community College shooting. Tyrannosaurus Rump was tweet-defending Dr. Ben Carson’s suggestions that people hit active shooters with chairs.

Out on the campaign trail, the T. rump was getting massive amounts of free media coverage for talking about how there is no gun problem in the good ol’ U.S. of A., only a mental health problem. Here’s just one, tweet-based piece of that coverage from a Washington Post reporter:

philip-bump-on-trump

So, mere minutes after realizing I had a titan of industry as one of my Twitter followers, I sent this tweet out to my newest fan:

my-trump-tweet

I sat and waited a bit for a response from Trump or any of my fewer-than-400 followers. If only I’d known the trick of putting a period before his address. Okay, I still probably wouldn’t have gotten all that much of a reaction, but I can dream, can’t I?

The minutes turned to more minutes, and soon I went off and did something else…like took a nap, or maybe put away some laundry. The TV was on. I know this because that’s where I heard the Tyrannosaurus Rump going off about the mental health vs. guns stuff—the stuff that prompted me to send my not-all-that-clever Tweet.

I saw no further notifications. I hadn’t provoked some backlash from the T. rump’s followers, leading to a ‘blowing up’ of my phone.

I popped onto Twitter an hour or two later, and quickly realized I was down a follower from the last time I had logged on.

Could it be?

No!

Not only had the T. rump given up on following me, the man who would become the leader of the free world (barring any religious-conversion-inspiring results from election recounts) had done this:

blocked-trump

Blocked.

I was blocked.

The tweet that I had thought was a total throw-away, a barely-conceived idea that I’d bounced out into the world, because of some audio of T. rump I’d heard over the local news–had upset the Tyrannosaur (or had alarmed his handlers) to such an extent that I was no longer allowed to even view the stream-of-garbageness that flows from his fingers, into his phone, and out to the worldwide web.

To this day, I cannot even see the wit and wisdom the T. rump shares with the world…I mean, except by looking at any other media outlet anywhere, all of which seem to be obsessed with reporting on tweets from the Tyrannosaurus Rump, or by logging into my dummy Twitter account that I set up mostly for the purpose of playing along with @Midnight’s hashtag wars.

Still, it hurts to know that I caused so much strife to someone who was just reaching out, looking for a friend. How could I have been so careless as to cause so much hurt? Why did I let my mean spirit provoke an instant blockage?

Yes, the man who would unthinkably become the leader of the free world had been so traumatized by my nasty comments that he would cut himself off from me for good. Citizens be damned.

Remember–your President Elect will not tolerate disrespectful tweets.

No, really, remember it.

And if I go missing, well, I regret nothing…well, at least not where that tweet is concerned.

But, really?

That’s what got me blocked?

My friends say worse sh*t to me on a daily basis.
Daily.
I kid you not.
And he’s going to have access to nuclear weapons?
Oh, good god, I probably shouldn’t have made those Tyrannosaurus Rump comments.
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Elonis and the ‘Art’ of the Online Threat

by

JC Schildbach, LMHC

Last week, the U.S. Supreme Court decided that making threats on social media isn’t always making threats on social media.

Call it the jk standard.

Or don’t call it that. That’s not really what the Supreme Court decided.

In this particular case, (Elonis v. United States, 13-983 U.S. ___ (2015)) a rather sad and unpleasant man named Anthony Douglas Elonis took to calling himself “Tone Dougie” on Facebook, where he wrote and posted “lyrics” and “comedy routines” involving threats to his ex-wife, former co-workers, an FBI agent, and elementary school children. But the Supreme Court really only decided whether the jury that convicted Elonis of criminal offenses was given the appropriate instructions for deciding that conviction.

So, the Supreme Court was not looking at whether Elonis legitimately acted in a criminal fashion, but whether the jury was instructed to apply the wrong standard in his case. In the court that convicted Elonis, the jury was asked to apply the “reasonable person” standard that is used in civil cases involving threats, when they should have been asked to apply the “criminal intent” standard that is used in criminal cases.

In other words, it’s as if the jury was instructed to decide whether Elonis should be forced to pay a financial penalty to the people he antagonized, and the jury said ‘yes,’ so Elonis got thrown in prison. The question the jury was asked did not match up with the penalty Elonis received—legally anyway.

So, while “reasonable persons” might recognize that Elonis was deliberately threatening his wife and numerous other people, a criminal conviction generally requires a standard of “criminal intent”—or proof that it was Elonis’ intent to threaten his wife, and the others.

The jury should have been instructed to decide whether Mr. Elonis had intended for his posts to be viewed as threats by those people who were the targets of those threats. Elonis argued that his posts were just “art” and a “therapeutic” way of working through his pain after his wife took their children and left him. Elonis and his lawyers pointed to Eminem as an artist who has built much of his career on songs threatening violence against his ex, and to the other posts on Elonis’ facebook feed where he asserted he was engaging in protected free speech, joking, or that otherwise had nothing to do with the threats, as proof that Elonis was not deliberately threatening anybody.  That is, Elonis argued that he had artistic and self-soothing intent, not intent to threaten anybody. And, although reasonable people might call bullshit on Mr. Elonis’ argument, reasonable people don’t count here.

There is ample evidence to suggest that Mr. Elonis did, in fact, intend for his targets to feel threatened. For instance, one of his jaunty little poems/rap songs questioned whether his wife’s protection order–granted because a judge saw that there was legitimate reason to keep Mr. Elonis away from his wife and their children–would, when folded up and stuffed in her pocket, be “thick enough to stop a bullet.” That same “poem” included claims that Elonis stood to earn plenty of money in a “settlement” against the police, and claims to own explosives that could be used against state police and sheriffs.

A little background from the court opinion, highlighting Elonis' 'art.'

A little background from the court opinion, highlighting Elonis’ ‘art.’

Another of Elonis’ quirky little fantasies involved slitting the throat of the (female) FBI agent who was sent to his house to question him about a Facebook post wherein Mr. Elonis suggested he was going to gain fame by shooting up an elementary school.

Elonis also posted some “art” suggesting that he could easily sneak into the Halloween events at the amusement park he was fired from, in order to engage in violence.

Such fun. So expressive.

Grammar fans are also upset by Elonis’ use of the botched phrase, “if worse comes to worse,” in his poem about his wife’s protection order.

There were other posts involving insults and threats against his wife, calling her a slut and a whore, indicating he should have smothered her with a pillow, posting floor plans of the house where she was staying, and describing how, from a nearby cornfield, he would have a clear shot in through some glass doors at said house.

And beyond just the words that Elonis posted, there were plenty of other indications that his words were meant as more than just artistic expressions.

For instance, Elonis called his sister-in-law to make sure his wife had seen his posts on Facebook. And, prior to threatening his co-workers online, he was fired, in part, because he had begun to undress in front of a female coworker after cornering her in her office one night.

But—and this is a big but—the Supreme Court wasn’t deciding whether Elonis’ actions were A-OK, or whether he was engaging in acts of protected speech. In fact, the Court declined to address the issues of free speech, since the main question was about whether Elonis had been wrongly convicted.

Simply stated, the Court decided that, because Elonis was convicted on criminal charges by a jury using the standards for a civil decision, Elonis had been wrongly convicted of a criminal offense.

This is not to say that the jury would not or should not have convicted Elonis had the jury been given the appropriate instructions–to decide Elonis’ (criminal) guilt based on whether he had criminal intent to threaten his wife and other parties—rather than deciding whether a reasonable person would have recognized Elonis’ words and actions as threatening.

"Ammo Can Kiss."  Media: Selfie.  Artist: Tone Dougie

“Ammo Can Kiss.” Media: Selfie. Artist: Tone Dougie

So take heart, reasonable people. The Elonis case does not mean that threats are now a protected form of speech. I would guess that a jury would likely see Elonis’ behavior as meeting the criminal standard of having legitimate intent to threaten—given the specificity of the targets and actions laid out in his ‘rap lyrics.’ That the targets of Elonis’ behavior took his words as legitimate threats, and lived in fear of what he might do, and that his “art” provoked the necessity for a visit and monitoring by the FBI, suggests that Elonis was not somebody who was just a misunderstood artist.

Yet, that’s a question for another day. Or, put a different way, the Supreme Court makes decisions based on the questions it gets, not the questions the public wants answered. And the only question the Court really decided here was whether the jury got the right instructions to make the decision they were tasked with making in the Elonis case.

To be sure, the Supreme Court’s decision leads to a shift in how cases like Elonis’ will have to be prosecuted. Plenty of lower courts have allowed criminal convictions using the same “reasonable person” standard that was used in the Elonis case. And the “criminal intent” standard can be much harder to prove.

There is much to be said about how to successfully address online threats, and questions of how our slow-moving legal system can adequately respond to rapidly- changing technology and online environments. For practical advice on those issues, Crash Override, started by Gamergate target Zoe Quinn, is an excellent resource

And in related entertainment news, I’m guessing Tone Dougie’s album drops around the 12th of Never.