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This morning the Supreme Court overturned the conviction of a man who had been found guilty in federal court of posting vicious, explicit threats on Facebook. The majority opinion was written by conservative Chief Justice John Roberts.
Sounds pretty bad, right? Mother Jones thought so, titling its post SCOTUS Delivers Good News for Online Trolls. Other outlets quickly followed suit.
But most of these stories were clearly written in haste, and as is so often the case with Supreme Court decisions, the core of today’s ruling isn’t in the soundbites. In fact, this decision is a loss for those who make threats online, and a win for folks who want to see them punished.
So what is everyone getting wrong? Let’s take a look.
Back in 2010, a guy named Anthony Elonis spent a bunch of time on Facebook harassing his estranged wife. Like many internet trolls, he defended his abuse — which eventually grew to target work colleagues, amusement park employees, and even local schoolchildren — as exercises in protected speech. His posts were rap lyrics, he said. They were fictional. They carried disclaimers and links to Wikipedia articles. Free speech, man.
The feds didn’t buy it, and sent two FBI agents to his house. After they left he put up a mocking Facebook post saying he’d wanted to slit the female agent’s throat in his living room, and that he’d been wearing a bomb under his clothes that he would have detonated if they’d tried to arrest him.
It didn’t take long for him to be arrested after that.
Elonis’ defense against the ensuing charges was pretty much what you’d expect. He didn’t really intend to harm anyone, he was engaging in artistic expression, the posts were intended as therapy and catharsis, not terrorism. The jury thought that was garbage, and convicted him on four federal felony charges. Today the Supreme Court set aside their verdict.
At this point, you’re probably wondering where I’m going with this. The guy made obvious, targeted, specific threats, a jury found him guilty, and the Supreme Court tossed the conviction. Win for him, loss for justice. Right?
Not quite. Because one of the things the lawyers argued about at trial was what the jury had to conclude to convict him. His lawyers claimed that unless the prosecution could prove he’d intended to carry out the threats he was innocent, and the government said that his intent didn’t matter — as long as he’d written the words, and a reasonable person would view them as threatening, he was guilty.
The trial judge agreed with the government, and instructed the jury accordingly. Moreover, they allowed the prosecutors to do the same. In closing arguments, one of the government attorneys said that “it doesn’t matter what he thinks” — that what was going on in Elonis’ head when he put up the posts was irrelevant to the case against him.
Whether that prosecutor was right was the question before the court today.
And it turns out, despite what a lot of folks are writing this afternoon, that it’s not a simple yes-no question. The court found that the judge instructed the jury incorrectly, so they overturned the conviction. (Elonis could be tried again, though it’s not clear whether he will be.) But in deciding what the judge should have said, the Supremes didn’t have to pick between Elonis’ position and the federal government’s, and in fact they rejected them both. Why they rejected them, and what they embraced instead, is where things get interesting — and where the targets of online harassment can find a lot to like.
News outlets described the ruling as a narrow one, and in a sense that’s true — the court set several of the relevant issues aside for later consideration. (We’ll get to those in a bit.) But the majority opinion did take on the legal claims that Elonis made in court (and, before that, online), and knocked down the most important of them.
Here’s the biggest: Elonis claimed that for a jury to conclude that his statements were threats, prosecutors had to prove that he intended them as threats — that they had to show he wasn’t joking or writing fanfic or otherwise screwing with his audience.
The court rejected that argument. Flatly.
This is the first victory in the opinion, and it’s a big one. The court said that a threat counts as a threat under federal law not only if it’s intended as a threat, but also if the writer knows it will be interpreted that way:
There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.
Note that “there is no dispute” language. If you make a threat online, and you know the person who receives it will see it as a threat, you’re guilty of violating federal law. It doesn’t matter if you claim that it’s protected speech, or put a smiley face at the end, or point out later that the threat was really just lyrics from an old Beatles song. If you send a threat and you know it’ll be interpreted as a threat, you’re guilty. Period.
That one sentence will serve as a tremendous weapon in online disputes over threatening speech from today forward. “There is no dispute.” And there is no dispute — the majority opinion in which that sentence appears was signed by seven of the nine justices, and neither of the two who dissented from the opinion of the court disagreed with that aspect of it. It’s unanimous.
And it’s also not the end. Because there’s another possible way of understanding legal culpability here, and while the court didn’t explicitly address that one, they strongly hinted — with backup from an unexpected source — that they’re likely to resolve it in a way that favors those targeted by such threats.
The issue here is the legal standard of recklessness — in essence, willful disregard of the risk of a particular consequence. You can think of it this way:
Elonis said that unless he intended the threat as a true threat, he was innocent. The court knocked that down. He also said that if he merely knew it would be taken seriously, but didn’t mean it seriously, he was innocent. The court knocked that down too. The prosecutors said it didn’t matter what he was thinking, and the court rejected that analysis as well. But it turns out that there’s another way of framing the issue — a way of splitting the difference between the prosecutors’ interpretation and the defense’s — and that’s recklessness.
If he knew his comments would be taken as threats, he was guilty, whether he meant that way or not. But what if he knew they might be taken as threats, but didn’t care? That’s the recklessness standard, and it’s going to be a big deal in future prosecutions.
If you think about it, it’s pretty difficult to prove someone knew somebody would take something as a threat. Not impossible, and not as hard as proving they intended it as a threat, but hard. Proving they considered — or must have considered — the possibility, though? That’s easier. If the recklessness standard is adopted, putting these guys away is easier.
So what did the court say about the recklessness standard? Basically that they didn’t have to address it, so they wouldn’t. The Supreme Court doesn’t like answering hypothetical questions, particularly ones that they haven’t been fully briefed on, and so they decided to leave this one for another day.
Often this happens when the court has a strong majority for a particular outcome, but they’re not sure they’ll be able to hold it together if they fold in another issue. In this instance, though, there’s good reason to believe that the court will likely adopt the recklessness standard down the road.
The case for the recklessness standard is made powerfully in a separate opinion filed by conservative justice Samuel Alito. Recklessness is, he argues, the obvious standard to apply in this instance — precedent, history, and common sense demand it, and justice does as well:
Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway.
After making his case for the recklessness standard, Alito urges trial-level and appellate judges to embrace it, noting that “nothing in the Court’s noncommittal opinion prevents lower courts from adopting that standard.” Alito is right that the majority did not preclude it, and right that they showed no particular interest in discouraging it. I suspect that he is also right to imply — as he does — that if the court had confronted the recklessness question today, he would have been writing for the majority.
There’s one more thing worth noting about Alito’s passionate and eloquent opinion, and that’s that he directly takes on the question of free speech, and does it beautifully.
The majority sidestepped free speech, saying — as with recklessness — that the question of whether this law is consistent with the First Amendment wasn’t before them today. Alito, though, charges forward. First he demolishes the “intent is magic” argument we see so often on the internet:
Whether or not the person making a threat intends to cause harm, the damage is the same.
From there, he moves on to the question of freedom of expression more generally:
Elonis also claims his threats were constitutionally protected works of art. Words like his, he contends, are shielded by the First Amendment because they are similar to words uttered by rappers and singers in public performances and recordings. […] If [a] celebrity can utter such words, Elonis pleads, amateurs like him should be able to post similar things on social media. But context matters. “Taken in context,” lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person. Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously. To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.
Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.
This is great stuff, and we have reason to believe that it will be quoted approvingly in a majority opinion in the very near future.
Today was a bad day for internet harassers, and a very good day for the rest of us.
Update | Fascinating, wonky defense by law prof Orin Kerr of the majority’s decision to sidestep the recklessness issue. As he puts it, federal law on mental states like “recklessness” is “a mess … a mishmosh of confusing common law mental states with some occasional Model Penal Code (MPC) tossed in for flavor.” And while the MPC has a specific, technical definition of “recklessness,” it was written a couple of decades after the law in question, making using the latter to interpret the former somewhat dicey.
Defining “recklessness” is likely to be complicated, in other words, and SCOTUS was — Kerr says — sensible to leave it for another day. An interesting interpretation, not least because it appears to lend support to my impression that the majority found the recklessness standard appealing. (If they were going to adopt a higher, clearer standard, then defining “recklessness” wouldn’t be an issue.)
Second Update | A Scotusblog analysis of today’s decision points out something I (and everyone else I read today) missed — it’s not quite clear that Elonis’ conviction is going to be overturned after all: “It will be up to the Third Circuit, when the case is returned there, to sort out what, if anything, will happen to Elonis himself.” That analysis also points out that this case took an unusually long time to move from oral arguments to decision, typically a sign that the justices are having difficulty coming to agreement.
Third Update | I’ve seen a lot of folks online suggesting that there’s no connection between the kind of speech Elonis engaged in on Facebook and actual violence, so it seems worth mentioning what Elonis is doing these days and why.
Turns out he’s in jail.
Not because of the threats against his ex-wife, though — he was released on those charges last year, having completed the mandatory portion of his sentence. No, this is about unrelated conduct.
Sometime after his release, Elonis started a relationship with a local woman. He moved in with her at some point, and she later asked him to move out. He didn’t. Her mom came to stay with her until he left, and on April 29 the three of them got into an argument over his continued presence. During the course of that argument he threw a metal cooking pot at the mother, hitting her in the head.
He’s been locked up since.
This is the tenth in a series of posts in which I answer uncomfortable questions posed by nervous lefty readers. You can learn more about the series, read the other questions, and ask your own here.
Should men call themselves ‘feminists’? Or ‘pro-feminists’ or something else?
Fun question. Let’s start by saying that this is an issue on which feminists disagree — one of the many, many questions to which there’s no single feminist answer.
Which is, I guess, probably why you’re asking. So let’s jump in.
Huh. This is tougher than I was expecting. I’ve been writing and deleting ledes for a few minutes here, going back and forth between variations on “I used to fall squarely in the ‘pro-feminist’ camp, but…” and “I’m pretty much in the ‘pro-feminist camp, except…” Neither framing felt right, though, and I think I just figured out why:
I don’t think there are all that many occasions in which it’s all that necessary for men to call themselves feminist or pro-feminist.
Here’s what I’m getting at. If you’re a guy, and you’re (pro-)feminist, folks should be able to figure that out. If they’re curious, they can ask. What’s the need for a declaration?
Often it’s a way of establishing your credentials, frequently in a discussion with a feminist woman. You’re being slammed for saying or doing something a feminist took as obnoxious. You’re trying to criticize a feminist position while making it clear you’re not an enemy. You’re arguing that someone’s seeing sexism where it doesn’t exist. You’re getting piled on, or worried that you will be. So you say it:
“Look. I’m a feminist.”
And that’s not cool.
For one thing, it’s not going to work. If someone thinks you’re an anti-feminist, or being anti-feminist, saying you’re a feminist won’t change their mind. And it’s not likely to get you any slack, either — if anything, it’ll probably have the opposite effect. Because whether you intend it or not, there’s a good chance “I’m a feminist” is going to be heard as “I understand feminism better than you,” which, realistically, you probably don’t.
Because even if we say men can be feminists, we also have to say that feminism isn’t just theory. It’s something that grows out of lived experience. And a man’s (particularly a cis man’s) lived experience of sexism isn’t going to be the same as a woman’s. For starters, a woman’s lived experience of sexism is going to include a long history of men assuring her that they understand things better than she does, which … whoops, you just did.
I won’t go so far as to say that pulling the “I’m a feminist” card is an anti-feminist act, but yeah, it kind of sort of almost is.
So in that context, the answer to “Should men call themselves feminists?” is easy: No. Because it will end badly for them. But what about other contexts?
I suspect that there was probably a moment in one of my early conversations with my kids about politics that one of them asked me whether I was a feminist, and I’m sure that if that happened I said that I was. I’m pretty sure that as a guy I’ve been in conversations with other guys in which it was assumed that I was anti-feminist, and that I’ve corrected them by saying I was one myself.
So yeah, in those kinds of situations I think it’s fine. Knock yourself out. But honestly those kinds of situations just don’t come up very often.
As always, though, I’m interested in what other folks think. And if there are other contexts I’m not thinking of that anyone would like me to weigh in on, just let me know.
So when I was on Al Jazeera English this afternoon talking about trigger warnings (link coming soon), they played a clip of someone mocking Britain’s National Union of Students’ Women’s Campaign for requesting that delegates use “feminist jazz hands” instead of applause on the plenary floor at a conference this spring. I talked about this on Twitter when it happened, but never got around to writing it up, and since I didn’t get the chance to chime in on the show, I’ll take a moment to do it now.
I think using “jazz hands” instead of clapping at a conference is a great policy. Here’s why.
I’ve participated in, and chaired, a lot of big student meetings. They can be hugely intimidating for people who aren’t used to public speaking. However old you are, whatever background you come from, it can be terrifying to get up and speak in front of hundreds of people. And that’s particularly true if — as at a national activist conference — what you’re going to be saying is likely to be contentious, or deeply personal, or complex.
Because of this, every deliberative body has rules of protocol. Often they ban outbursts — either positive or negative — from the floor while someone is speaking. That’s not new, or weird.
But jazz hands instead of clapping? That’s weird, right?
Nope. I’ve seen it plenty of times before, and with good reason.
Applause can drown out the speaker, particularly in a big room. It also slows everything down, dragging out the proceedings and gumming up the works. Beyond that, even positive feedback from an audience can be distracting, even disconcerting. It’s easy to lose your train of thought if people start clapping when you’re not expecting it. (I speak in public for a living, and I have for decades, and I still sometimes get thrown off by applause.)
Also, just as booing or hissing or other negative responses can make people less likely to speak up in the future, cheering or clapping for one speaker can discourage others from disagreeing. And it’s not even necessarily about fear — you may decide the body has its mind made up, so you don’t say the thing that could in reality make them reconsider.
For all of these reasons, my personal preference when chairing a plenary is that all audible expressions of support or opposition to speakers be disallowed. It makes meetings run far more smoothly and quickly, and encourages the kind of engaged, robust deliberation you’re looking for.
So yeah. It’s easy to mock wacky feminist students and their wacky feminist ways. Always has been, always will be. But this time the wacky feminists were right and their mockers were (and are) wrong.
If you ask President Obama what portion of female college students are raped, he’ll tell you the number is one out of every five. If you ask critics of the current movement to combat campus sexual assault, they’ll tell you that widely quoted figure is hugely unreliable.
Today we have one more piece of data, and it largely backs up the president.
A new study, published this week in the Journal of Adolescent Health, finds that 15.3% of female students at one New York college were subjected to rape or attempted rape in their freshman year. If you expand the scope of the question to include the following summer, the figure jumps to 18.9%.
So what’s behind these numbers? The study, which defined sexual assault more narrowly than some others have, looked at two categories of rape — assaults committed through force or the threat of force, and assaults committed while the victim was incapacitated by drugs or alcohol. The authors found that 7.3% of women surveyed experienced at least one attempted or completed forcible rape in their first academic year, while 12.1% experienced attempted or completed rape by incapacitation.
Does the 15.3% figure for the first year suggest that the one-in-five number is actually too low? Maybe not. This is only one college, remember, and these kinds of statistics are never precise. Other studies have found that sexual assault is most common during the early stages of college, and this report backs that up — the authors found a twenty-five percent drop in the number of students experiencing sexual violence from the fall semester to the spring.
More troublingly, the authors also found that many women in the study were subjected to more than one sexual assault in their first year. Although they didn’t break out those numbers directly, it’s plain from their data that many of those assaulted in the spring (and the summer) had been assaulted in the fall as well.
The study asked about sexual assault earlier in life, and found that it was widespread as well — some 28% of women in the survey said they had experienced rape or attempted rape between their fourteenth birthday and enrollment in college. (Most of these sexual assaults seem to have been attempted, though the study doesn’t provide that analysis explicitly.)
One of the study’s most chilling findings is the extent to which previous sexual assault — particularly sexual assault by incapacitation — predicted future assaults. Forty-one percent of the women who reported rape or attempted rape by incapacitation before college reported the same experience in their first collegiate year, compared to just ten percent of those who had not been subjected to sexual assault by incapacitation in high school. For rape by force in college, there was a similar gap between those who had experienced assault by incapacitation before and those who had not — twenty-three percent versus six percent.
The authors don’t attempt to explain the cause of this gap, which is seen again (though to a much smaller extent) among women who had experienced forcible sexual assault before college. Different observers will interpret the data in different ways — a fact which underscores the importance of this study and our desperate need for more data in this area.
Critics of anti-rape activism frequently highlight gaps and contradictions in our statistical understanding of sexual assault as cause for skepticism or mockery. It’s true that there’s a lot that we still don’t know, and that relying too heavily on any one statistic is dangerous. Does this study prove that one in five college women will experience rape? It doesn’t. That’s information we still don’t have.
But what this study, and studies like it, do accomplish is moving us toward a better understanding of the scope and nature of our society’s sexual assault crisis.
We know that by even the most conservative estimates, hundreds of thousands of women are sexually assaulted in the United States each year. We know that a significant — and disproportionate — number of those rapes and attempted rapes take place on campus.
But we don’t actually know much for sure beyond that. Anyone who tells you with any specificity how frequently sexual assault occurs in our colleges or in our society is lying, or guessing. But that fact is itself damning — a reflection of how long we ignored rape in this country, and how early we are in our efforts to come to grips with it.
Note: Most of the figures in this piece are taken from the full JAH study, which is not currently available to the general public online.
In a short video that was posted online late Wednesday, a student advisor at Kennesaw State University in Georgia is seen confronting a black student in the college’s advisement office, telling him that continuing to wait for an advisor after being told to fill out an appointment form is “harassment.” Twice in the thirty-second video the advisor — who is white — threatens to call campus police, and the video ends with her leaving to do so. The clip has gone viral on social media today with the hashtag #ItsBiggerThanKSU, and Kennesaw State has tweeted that “a formal complaint process” is underway.
The student’s demeanor is calm and agreeable throughout the video, and there is no indication that he has caused any disruption — he’s sitting in a chair in what appears to be the office’s public waiting room.
The student, Kevin Bruce, has posted an account of the context of the incident. In it, he says that he had previously attempted to resolve an advisement issue by email without success, and that when he was told to speak to an assistant he said he’d prefer to wait for the department’s head academic advisor, Margaret Tilley. (The woman in the video, Abby Dawson, is another member of the advising staff.)
Now, it’s possible that there’s some backstory here that would render Dawson’s actions more comprehensible, but it seems relevant that a number of KSU students have gone public today with complaints about similar behavior on her part. At least two of those students have posted what they say are screenshots from recent email exchanges.
One of the screenshots is of a complaint a student lodged against Dawson just three weeks ago. In it, the student — a recent tranfser — says that he showed up at 12:47 for a drop-in appointment scheduled for a 12-1 window, and that Dawson berated him for lateness and failure to follow protocol, refusing to help him or give him her name.
In the other exchange a student writes to Dawson saying that she’s waitlisted for a summer class that’s a pre-requisite for two she needs to take in the fall, and asks — politely — whether it would be possible to take the three as co-reqs instead. When Dawson responds that this would violate policy, the student responds with a quick “Thanks! So even if it’s going to put me behind there are no overrides?” Dawson replies, “I will not continue to answer the same question.”
Again, it’s possible that these accounts are fabricated or doctored or incomplete in some way. But on their face, they seem to show a pattern in which Dawson repeatedly reacts to minor breaches of etiquette or protocol with abrasiveness and aggression. It’s not unreasonable to show up at a quarter to one for a quick consult that was slated for a one-hour window ending fifteen minutes later. It’s not unreasonable to ask whether there might a way around an academic regulation that’s threatening to stall your progress toward your degree. It’s not unreasonable to offer to wait in an administrator’s office until she has time to see you in person rather than trying to deal with an aide.
Administrators don’t have a responsibility to accede to these kinds of requests — some rules have no loopholes, some late arrivals can’t be accommodated, and some admins don’t have time to deal with unexpected drop-ins. But to say that you can’t always accommodate a student’s wishes doesn’t mean that you have the right to respond abusively.
And it absolutely doesn’t mean it’s appropriate to bring in the police. We’ve seen over and over in recent months how quickly and unexpectedly interactions with the police can turn deadly — particularly, though by no means exclusively, for young black men. When you escalate a minor disagreement with someone by calling the cops, you’re putting them at risk. Risk of violence, risk of death, and risk of unwarranted arrest and imprisonment. When a student advisement professional does it, it’s an appalling breach of their duty to the students of their campus.
Maybe there’s an explanation for all this. Maybe none of it is what it seems. If that’s the way it shakes out, I’ll be first on line to say so.
But right now it all looks very bad.