Tag Archives: Hate Speech

Elonis and the ‘Art’ of the Online Threat

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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.

Pam Geller’s Free Speech Chum

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JC Schildbach, LMHC

Two heavily armed, body-armor-clad, wannabe-jihadists shooting a security guard in the ankle and then getting picked off by a pistol-wielding traffic cop in a parking lot outside a cartoon contest in small-town Texas is not, as Pam Geller would have us believe, some kind of religious war in the United States. Rather, it was Geller’s own failed effort to start a larger fight.

Before I go any further, let me state up front that Geller, along with everybody else in America, has every right to say whatever paranoid, delusional things she wants to say about the inevitable imposition of Sharia Law and the ensuing mandatory ‘honor killings’ by our ‘secret Muslim’ President. She also has every right to hold a cartoon contest deliberately designed to insult a particular group of people over their religious views. Said group of people, or any of its members, has the right to fight back with words, logic, cartoons or delusional rants of their own—but not with bullets, bombs, or knives.

Let me also point out that some people have stated that there are prohibitions against engaging in speech that is designed to incite people to violence. But that doesn’t really apply in this case. If Geller held a rally where she encouraged the attendees to go out and physically attack somebody, then she would be inciting people to violence. Saying something to deliberately offend somebody is not inciting that person (or group) to do anything. Their reaction is entirely up to them.

That said, Geller sailed into Garland, Texas, along with Dutch politician Geert Wilders, to hold a cartoon contest intended to insult Muslims over their belief that the Prophet Muhammad should not be depicted in any physical form—much less in any deliberately offensive form. (Judaism and Christianity, among other religions, have similar prohibitions written into their holy books regarding depictions of holy figures, but plenty of Christians really like pictures and statues of Jesus—unless they’re offensive, in which case they call for bans on whoever made them, whatever paid for them, and whoever hung them on a wall).

Geller’s reason for holding the event at a community center in Garland was apparently related to a Muslim event held there earlier in the year, called “Stand with the Prophet in Honor and Respect,” an event which had been held in Chicago the previous year. In 2015, the “Stand with the Prophet” event had the unfortunate coincidence of having been scheduled to occur shortly after the Charlie Hebdo attack in Paris.

Geller has stated that her cartoon contest is intended as a response to the Charlie Hebdo attack. The Charlie Hebdo folks, though, were equal-opportunity offenders. That is, they didn’t seek only to piss off Muslims, they wanted to piss off everybody. And they’d been going at it for years. They didn’t just hire their own little paramilitary-force-for-a-day and set about trying to troll militant Muslims.

Geller, on the other hand, tried to chum the waters with her cartoon contest, thinking she’d draw a feeding frenzy of violent jihadists to her little event—perfect target practice for the $10,000 worth of security she hired. What she got instead was a pair of inexperienced, young pups, mouths full of aimlessly-chomping teeth, drunk on the blood and guts of Geller’s antagonism, who bit off way more than they could chew.

We're gonna need a dumber boat!

We’re gonna need a dumber boat!

Geller, when she isn’t directly attempting to insult all Muslims, claims that she is an opponent of Muslim extremists and extremism. However, she does not actually draw that line, or make any consistent effort to explain where that line actually is. To her, Muslims who actually do attack things and people like her cartoon contest and its attendees are seen as proof that she is right about the intent of Muslims to take over America and kill all non-Muslims. Unfortunately, to Geller, Muslims who do not attack are seen as evidence of a quiet, creeping plot—sleeper cells who are biding their time, before they make their move to take over America and kill all the non-Muslims.

Geller also claims she is a defender of free speech, religious freedom, and individual rights. But, again, her position on such freedoms is a bit muddled. For instance, if she is so supportive of religious freedom, it’s hard to understand why she pushed so hard to stop the “ground zero mosque” from being opened, or why she spends so much time antagonizing Muslims in general, accusing the religion as a whole, and all of its adherents, in whatever form, of heinous crimes (and future crimes).

Likewise, Dutch madman Wilders has attempted to ban the Quran in his home country, as well as trying to prevent mosques from being built there—all under the guise of protecting women and other ‘victims’ of Islam. These are not exactly the actions of someone who thinks that the ‘marketplace of ideas’ will lead to the best possible outcome.

In short, Geller and Wilders are in favor of freedoms for those who they agree with, but want to shut down those with whom they disagree, even if Geller’s and Wilder’s disagreements are with vague caricatures of their alleged enemies, or if those disagreements are assumed to apply to all people who fit under a vast umbrella of a label.

Yet, despite Geller’s and Wilders’ proclamations of war, Elton Simpson and Nadir Hamid Soofi do not represent all of Islam anymore than, say, Michelle Bachmann represents all of Christianity, or anymore than Geller and Geert actually represent the concerns of all people as relates to freedom of speech and freedom of religion.

Still, if we’re going to ban Geller from her weird little attention grabs, than might we also have to ban things like, say, The Book of Mormon (the play, not the book)?  As much as the authors of The Book of Mormon might have been making a more nuanced critique of religion and what it means to believe, they certainly weren’t out to avoid offense.

And if we’re going to justify Simpson’s and Soofi’s actions as some kind of expected or normal response to Geller’s provocation, then aren’t we moving dangerously in the direction of saying that perpetrators of violence are only acting in ways that the victims of the violence should have expected, and have to accept?

Make no mistake, there are consequences to Geller’s form of speech. The main form of those consequences is that stupid people will agree with her, and will buy into her ridiculous ideas that there is some vast Muslim conspiracy that is mere days away from taking away all of our freedoms as U.S. citizens in order to impose Sharia law. Said stupid people may even commit violent acts of their own, and will certainly engage in forms of speech that are as similarly unappealing as Geller’s. There is also the potential consequence that people of the Muslim faith around the world will view Americans as somehow aligned with Geller’s form of thinking (as opposed to tolerating it, because that’s what we do). Such people may view our tolerance of Geller as evidence of the ill intent of Americans toward the Muslim world, potentially perpetuating a long chain of conflict.

Although I’m not exactly demonstrating this by writing about them, perhaps the best response to people like Geller and Wilders is the response that all but two of the members of the Muslim community in the United States exercised: ignoring them/refusing to take the bait.

Evelyn Beatrice Hall, writing about Voltaire, expressed the core idea of freedom of speech as follows: “I disapprove of what you say, but I will defend to the death your right to say it.” I’m not sure I’m actually willing to take a bullet so that Geller can continue to peddle her special brand of targeted, incendiary bullshit. But I’m definitely not ready to make an argument that she must be shut down/shut up (like the arguments she has made about Muslims).

At the same time, I’ve also written numerous pieces suggesting that maybe certain forms of speech should be curbed in an attempt to reduce hostility toward people with mental illness, toward minorities, and toward people who generally don’t find themselves at the top of the power pyramid. Curbing such speech is, of course, a matter of personal choice, and a matter of seeking to be decent human beings. Under the banner of individual freedom, we get to say and do what we want, so long as we aren’t actually hurting anybody in some directly demonstrable way.

Of course, Geller isn’t on some quest to prove what a decent person she is, or what decent people Americans are in their acceptance of diverse traditions and differing viewpoints. She’s not on any kind of mission to promote free speech, despite her claims to the contrary.

And Elton Simpson and Nadir Hamid Soofi went down to Garland Texas with the intent to fight and die, much like Geller and Wilder went down to Garland Texas to try and provoke a fight.

They all got what they wanted—sort of.