Should Some Death Threats Be Considered Protected Speech?
Monday, June 16, 2014 - 11:11 AM
The past couple of days, I have been watching the back and forth between a twitter jokester named Rob Whisman, and a anti-gun control advocate called ICPchad. Whisman started the whole thing when, in the wake of yet another school shooting, he began trolling Chad by saying he was coming to Chad's house to take his guns, and do progressively more ridiculous things with them. It was all fun and games for a while, but Chad quickly escalated to barely veiled death threats (all of which appear, as of this writing, to have been deleted). Yesterday, after Whisman and his Twitter crew spent days trolling Chad, doxing him, and tricking him into tweeting a dick pic, Whisman tweeted this (also now deleted):
in all seriousness you guys can stop trolling icpchad now. it was all in good fun at first but now i legitimately fear for my life— rob whisman (@robwhisman) June 16, 2014
The internet has, in a strange way, diluted the power of the death threat. In more heated, less moderated corners of the internet, death threats are as natural as breathing. While threats against the President tend to be investigated seriously, and depending on the venue, they can land people in disproportionate trouble, death threats have sort of become part of internet parlance. Don't like the my political views? I'll kill you. Don't like my favorite sports team? I'll kill you. Don't like the latest DLC for Fallout 3? I'll kill you. For better or worse, the context of a death threat is often used to gauge how seriously it should be taken.
Today, the Supreme Court announced that it would be taking a case that makes this very argument - death threats online should be considered in context. Essentially "Some death threats are more threat-y than other death threats." In this particular case, a man named Anthony Elonis is making the claim that violent and threatening comments he posted about his estranged wife on Facebook are protected by the 1st Amendment. From the AP (emphasis added):
At his trial, the jury was instructed that Elonis could be found guilty if an objective person could consider his posts to be threatening. Attorneys for Elonis argue that the jury should have been told to apply a subjective standard and decide whether Elonis meant the messages to be understood as threats.
Elonis's lawyers say a subjective standard is appropriate given the impersonal nature of communication over the Internet, which can lead people to misinterpret messages. They argue that comments intended for a smaller audience can be viewed by others unfamiliar with the context and interpret the statements differently than was intended.
The Obama administration says requiring proof of a subjective threat would undermine the purpose of the federal law prohibiting threats.
It's a weird argument to think about, that an outside observer should only assess a death threat in a court of law given necessary context. As someone who watched the saga of ICPChad and Rob Whisman unfold, even with all the necessary context, and the genuine likelihood that ICPChad would never actually do anything to or about Whisman, I still found his death threats chilling enough to report his account to Twitter. At the same time, a kid in Texas who was ostensibly escalating a joke argument over League of Legends is now facing a decade in jail for saying he was going to shoot up a school.
Of course, naysayers will say that it's the fault of whoever puts up a death threat, and to a degree, that's right. But people take a pretty significant latitude in what they consider a death threat. People have been charged for posting rap lyrics. It's a tough 1st amendment line to walk.
All in all, from what I've read about the Supreme Court petitioner in question, he deserves to be in jail. But history has shown us that there aren't really any ideal plaintiffs when petitioning the Supreme Court. I generally consider myself a free speech absolutist, but this subject brings up a cognitive dissonance that's hard to really reconcile. So, as much as I hate to end an article with a question like this, what do you think?