(WOMENSENEWS)–The U.S. Supreme Court for the first time is weighing a case involving social media, free speech and cyberthreats.
The case, which will be decided next year, is of particular importance to women who experience unusually harsh forms of harassment online, including threats.
When we look at the disproportionately high rates of these experiences in young adult women (18-24), it is clear that they are targeted more often than young men. The Pew Research Internet Project surveyed adults about their experiences online.
The report concluded that "young women experience particularly severe forms of online harassment." Among this demographic, stalking (26 percent), sexual harassment (25 percent), physical threats (23 percent) and ongoing harassment (18 percent) were suffered at rates above those of all Internet users and men. Women overall indicated that the most common venue for these experiences was a social networking site, such as Facebook.
The case before the Supreme Court involves Anthony Elonis, who was estranged from his wife Tara Elonis when he posted statements on Facebook that were filled with profanity and graphic descriptions of the violence he would inflict upon her. Tara Elonis, age 25 at the time of events in the case, testified that she was afraid for her and her family’s and children’s lives. She reported the threats to authorities.
‘Hurry Up and Die’
One message that elicited fear: "There’s one way to love you but a thousand ways to kill you. 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, so I can bust this nut all over your corpse from atop your shallow grave."
Anthony Elonis was convicted of making threats against his wife in lower courts and served more than 36 months of a 44-month sentence. His lawyers argued that the nature of his postings were typical of the often violent and graphic rap music he listened to, such as the artist Eminem’s raps about his own ex-wife, and therefore were not intended to be true threats.
They also contended that Anthony Elonis sometimes used emoticons that his lawyers argued show that he intended his comments to be sarcastic rather than threatening. And they argued that comments in his posts show that they were "fictitious lyrics."
The First Amendment of the U.S. Constitution guarantees freedom of speech, but it is not absolute. "True threats" against a target are not protected.
The Justice Department’s lawyers argued that they do not believe that freedom of speech trumps individuals’ right to be free of the fear of violence and from the disruption that such fears often cause in the lives of the targets.
Question of Intent
Because the Internet involves interstate communication, this is a federal case. The legal question is whether in order to convict someone for a threat to injure another person it is necessary to show that "the defendant intended the communication to be threatening" or whether it is sufficient to show that a hypothetical "reasonable person" would feel threatened by the message.
Women experience intimate partner violence at much higher rates (4.3 per 1,000) than males and they are killed by intimate partners at twice the rate of males, according to the U.S. Department of Justice.
Is it any wonder, then, that women such as Tara Elonis take threats very seriously?
Should the court decide that Anthony Elonis‘ intent to threaten his wife must be proved, it will be a threat to women’s safety.
As Ruth Bader Ginsburg noted during oral arguments Dec. 1, "How does one prove what’s in somebody else’s mind?"
As a psychologist, I agree. Such threatening statements are psychologically damaging to the target and might well be announcements of planned violence. If intent has to be proved, a perpetrator can easily deny responsibility by saying, "I didn’t mean it," or "It was just a joke."
The Obama administration believes that the law’s protective purpose would be weakened if intent had to be proved. The data on violence against women make it clear that women need that protection. We hope the court agrees.