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“Another Case Of Roberts’s Judicial Minimalism”: Supreme Court; Your Facebook Threats Aren’t Necessarily Real Threats

Today, the Supreme Court held that you can post a threat to kill your wife on Facebook, but you’re not guilty of making a threat.

This is good news if you’re focused on free speech, especially online. It’s bad news if you’re concerned about the capacity of information technology to amplify threats, stalking, and coercion.

The result in the case, Elonis v. U.S., comes as something of a surprise, especially because it was a 7-2 decision, with Chief Justice Roberts writing for the court. That means the court’s liberal wing, the moderate-conservatives (Kennedy, Roberts) and even Justice Scalia were all in agreement.

The reason, however, was not the First Amendment. Court-watchers, and the defendant, Anthony Elonis, noted that the “threat” was simply a set of rap lyrics, and debated whether they were constitutionally protected. But the Court itself didn’t go there, instead basing its ruling purely on the federal criminal statute.

That statute says that anyone who “transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” is guilty of a felony. But what is a “threat,” exactly? Specifically, does it require evidence of an actual intent to harm the person, or is it enough “that a reasonable person would regard Elonis’s communications as threats”?

The district court had said the latter, but today, the Supreme Court disagreed. Threatening language is not enough. Targets feeling threatened is not enough. Criminal law requires mens rea, an “evil mind,” and in this case, the Court held that there must be some specific intention to threaten. Since that wasn’t established in this case (and since Elonis assiduously denied having it) the Court threw out his conviction.

(In dissent, Justice Thomas argued that a “general intent” should be sufficient, while Justice Alito argued for an intermediate standard of “recklessness.”)

Now, here’s where it gets interesting. Elonis is also known as “Tone Dougie,” and has produced some seriously bad rap lyrics, quoted at length in Chief Justice Roberts’s opinion. Indeed, to bleep out the bad words required 22 asterisks. The best parts of Tone Dougie’s oeuvre aren’t even the initial threats to his ex-wife, but the meta-threats that reference his investigation by the FBI. Here’s a sampling, asterisks provided by the Supreme Court:

You know your s***’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent lady stood so close
Took all the strength I had not to turn the b***• ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms of her partner…
S***, I’m just a crazy sociopath
that gets off playin’ you stupid f***s like a fiddle
And if y’all didn’t hear, I’m gonna be famous
Cause I’m just an aspiring rapper who likes the attention
who happens to be under investigation for terrorism…

Fab Five Freddy this is not. It’s not even Biz Markie. But it does bear a passing resemblance to someone Justice Alito referred to as a “well-compensated rapper,” namely Eminem.

The difference is that Eminem’s lyrics are clearly contained within a work of art, but Tone Dougie’s were simple Facebook posts. Yes, they rhymed (sort of), but they were simple posts.

“If I only knew then what I know now… I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.”

The Court noted that had Elonis typed these words out and snailmailed them to his ex-wife, it would almost certainly constitute a criminal threat, because it was made directly to the intended victim and thus counts as evidence of mens rea. (The Court didn’t use the term snailmail, of course—and referred to Facebook as a “social networking Web site.”) Presumably, if the text was emailed—or maybe direct-messaged?—it would also, thus, be a criminal threat.

So the only reason it wasn’t is that it was posted semi-publicly on Facebook. This allowed Elonis to tell one Facebook friend that “I’m doing this for me. My writing is therapeutic,” and to proclaim himself a victim of artistic censorship. Therapy, art, whatever—but not actual threats.

(In a detail not widely reported in the press, Elonis also posted “therapeutically” about his co-workers—at one point posting a picture taken at Halloween of him holding a toy knife to a co-worker’s neck, with the caption “I wish.” Classy.)

Now, throwing out Elonis’s conviction does not mean that he’s permanently off the hook. He could be tried again, although the state would now have to prove that he intended to threaten his targets.

But the Court’s decision is a victory for free speech advocates, and a loss for those worried about harassing speech online.

On the one hand, you can’t be convicted just because someone else finds what you said on Facebook to be threatening. As a poster child for civil liberties, Tone Dougie now joins the KKK marchers in Skokie. We may not like what he says, but we’re proud to defend his right to say it. Civil liberties protect all of us.

On the other hand, Facebook is a unique, new medium for harassment. (This, incidentally, was the company’s rationale for its “real names” policy.) Arguably, threats made in public are even more terrifying than those made in private, especially if other people “like” what you’ve said.

The Court is treating it like a newspaper, or an open mic at the poetry slam, but many of us relate to it far more intimately. It’s a venue all its own—a combination of telephone, bulletin board, and, occasionally, mob scene.

Moreover, requiring an intent to threaten makes it very easy for stalkers and vengeful exes to deny liability. Oh, that wasn’t a threat, I was just musing aloud. Right.

Of course, since the Court declined to entertain the constitutional questions, this is all just a matter of statutory law, and statutes can be changed. The Court also successfully avoided the question of when art is art. It didn’t say what Elonis’s words were, only that they weren’t actual threats. Elonis is thus yet another case of Roberts’s judicial minimalism.

Though I bet it doesn’t feel that way to Elonis’s ex-wife.

 

By: Jay Michealson, The Daily Beast, June 1, 2015

June 3, 2015 Posted by | Free Speech, Spousal Abuse, U. S. Supreme Court | , , , , , , , , | 1 Comment

“The Freedom To Provoke”: The Right To Free Speech Does Not Include The Right Not To Be Criticized

It’s still a radical document, the U.S. Constitution, no part of it more so than the First Amendment. Almost everybody’s for freedom of speech, particularly for themselves and people who agree with them. However, the part about no establishment of religion vexes True Believers of every persuasion. How can government possibly remain neutral in matters of faith?

But what really confuses people is an episode like the recent failed terrorist attack in Garland, Texas. Does our commitment to freedom of expression require that we condemn Elton Simpson and Nadir Soofi, the two self-proclaimed ISIS jihadists who got themselves shot to death during an abortive attempt to massacre participants in a well-publicized contest to draw ugly cartoon caricatures of the Prophet Mohammad?

Absolutely it does. Those two murderous dimwits got exactly what they came looking for. Although nobody’s saying so, something tells me the police officer who took them down wasn’t just the average traffic cop. That fellow would have been all over TV by now. This guy has remained anonymous. Amateurs are ill advised to get into gun battles with professionals.

But are we therefore also required to admire Pamela Geller, co-founder and president of Stop Islamization of America, the organization that sponsored the cartoon contest? No, we are not. The right to free speech does not include the right not to be criticized.

I’m glad nobody shot her. However, Geller’s actions were deliberately and characteristically provocative, coarse and contemptuous of others’ beliefs; in short, the very definition of bigotry. In the final analysis, those actions are also damaging to this country’s ability to prevail in its long twilight struggle with radical Islamic terrorism.

The amazing thing is how observers find this hard to see. Writing in his Washington Post media column, the normally sensible Erik Wemple takes issue with Geller’s critics. “And who’s being treated as the public enemy on cable?” he asks incredulously. “The woman who organized a cartoon contest.”

I’m pretty sure Wemple would take a different view of a Stormfront competition to caricature the ugliest hook-nosed rabbi.

But hold that thought.

“To her enduring credit,” Wemple adds “Fox News’ Megyn Kelly has been screaming all week about the folly of the ‘too-provocative’ crowd.”

Indeed she has. Interestingly enough, the lovely Ms. Kelly’s antagonists include Fox News luminaries Bill O’Reilly and Donald Trump, along with MSNBC’s Chris Matthews, CNN’s Jake Tapper, Republican presidential candidate Jeb Bush and others Wemple characterizes as “folded into a crouch of cowardice and rationalization.”

Megyn Kelly’s thunderous rebuttal to O’Reilly was couched in melodramatic terms Geller herself would find appropriate: “You know what else the jihadis don’t like? They hate Jews. Should we get rid of all Jews? That’s the path we’re going to go down catering to the jihadis. There’s no satisfying them.”

Holy false dichotomies, Batman! So the choices are deliberately offend the religious sensibilities of millions of peaceable Muslims or get rid of Jews?

This kind of black-and-white thinking is pretty much the stock in trade of propagandists like Geller intent upon persuading Americans that not only ISIS and al Qaeda extremists but Islam itself and Arabs in particular are terrorist enemies of the United States. All Arabs, everywhere.

The problem, argues former George W. Bush speechwriter Michael Gerson, is that the worldwide battle with Islamic fundamentalism can’t be won without Muslim allies — loyal U.S. citizens who report suspicious activities; allies and proxies who fight against violent Islamism; hundreds of millions of people around the world who repudiate Salafism by the peacefulness and tolerance of their daily lives.

When Americans engage in high-profile, attention-seeking acts of blasphemy, they are not joining U.S. military and intelligence forces at the front line; they are complicating and undermining their work.

President Obama has said much the same thing.

Things might also be different if Pamela Geller didn’t have such an extensive track record. “On her website,” reports the Jewish Daily Forward “Geller has denounced President Obama as ‘a third worlder and a coward’ who ‘will do nothing but beat up on our friends to appease his Islamic overlords’ and as ‘a muhammadan’ who “wants jihad to win.

The Anti-Defamation League has criticized Geller for “consistently vilifying the Islamic faith under the guise of fighting radical Islam.” The British government refused to let her enter that country in 2011. She has characterized other Jews who criticize her as worse than “21st-century kapos,” a reference to Jews who served as guards in Nazi death camps.

Astonishingly, after extreme-right terrorist Anders Behring Breivik murdered 70 people at a Norwegian Labour Party summer youth camp in 2011, he credited Geller with inspiring him. She then assailed the Scandinavian left for harboring anti-Israel sentiments, posting a camp photo on her Atlas Shrugs website captioned: “Note the faces which are more Middle Eastern or mixed than pure Norwegian.”

Non-Aryan Untermenschen, Hitler would have called them.

 

By: Gene Lyons, The National Memo, May 13, 2015

May 14, 2015 Posted by | Free Speech, Pamela Geller, U. S. Constitution | , , , , , , , | 1 Comment

“Pamela Geller Is Not A Hero, But….”: Americans Must Stand Up To Those Who Intend To Inflame Rather Than Inform

I am grateful to live in a country where even someone as hateful as Pamela Geller can speak her mind. She can smear President Obama as the “jihadist in the White House” and speculate that he “choked up” with tears when he ordered the killing of Osama bin Laden. She can say that Pope Francis’ call for “affection and respect” towards Muslims means he has “become an imam.” She can compare Jewish Americans who support President Obama to Nazi appeasers and call comedian Jon Stewart “the most disgusting Jew on the planet.” She can suggest banning Muslims from becoming airline pilots. She can then claim that anyone who doesn’t want to hear her speak is “enforcing the Sharia.”

I am also grateful to live in a country where the law protects Geller’s right to say these things.

Sunday’s incident, in which two gunmen tried to attack an anti-Islam event that Geller and virulently anti-Muslim Dutch politician Geert Wilders hosted in Texas, was deeply troubling. Our freedom of speech means nothing if people are too afraid to speak. We saw this in a different context earlier this year when Sony pulled a raunchy geopolitical buddy comedy from theaters under threat of terror attacks. Say what you will about Pamela Geller, she has not backed down from any of her vile positions under fear of violence.

But it’s important to remember that the fact that she was attacked for her speech doesn’t make Geller a hero, or her speech any less hateful. As Talking Points Memo’s Josh Marshall put it yesterday, “a hate group is a hate group the day after someone takes a shot at them just like it was the day before.”

Local Muslim groups had the right idea when they stayed away from Geller’s event, declining to protest so that they wouldn’t give Geller the attention she so desperately wanted. Those who expose her hateful rhetoric — like my PFAW colleagues — also do important work, making sure the public knows that just because she is targeted by violent idiots doesn’t make her a serious thinker or a hero.

I know that Geller won’t back down from her hateful rhetoric after this event– in fact, the attempted attack will probably embolden her and cause some to take her more seriously. And we shouldn’t stop criticizing Geller — or, as she puts it, “enforcing the Sharia” — when she’s wrong.

As People For the American Way wrote in 2009 in response to a renewed spate of inflammatory right-wing rhetoric, Americans must “be willing to use their First Amendment freedoms to challenge those who exploit their political positions or media megaphones to promote lies that are intended to inflame rather than inform, that encourage paranoia rather than participation, and whose consequences are at best divisive and at worst, violently destructive.”

 

By: Michael B. Keegan, People for The American Way, The Blog, The Huffington Post, May 7, 2015

May 10, 2015 Posted by | 1st Amendment, Free Speech, Pamela Geller | , , , , , , , | 2 Comments

“#JeSuisCharlie”: I’d Rather Die Standing Than Live On My Knees

This terrible thing happened.

Three hooded men armed with Kalashnikov assault rifles seized a magazine newsroom in Paris and murdered many of the journalists meeting there. At least 12 people are dead; at least 11 others are injured. A detail I can’t shake: One of the gunmen reportedly began the massacre by calling out the journalists by name.

As I write, we already know that four cartoonists for the satirical magazine Charlie Hebdo are among the dead: Editor Stephane Charbonnier, known as Charb; Jean Cabut, known as Cabu; Bernard Verlhac, known as Tignous; and Georges Wolinski.

Charlie Hebdo has made fun of many religious leaders, but it is best-known for having offended fundamentalist Muslims. And even many non-Muslims object to them as racist in their depictions. In 2011, the newsroom was firebombed for its satire on Islam and cartoons ridiculing the Prophet Muhammad.

As various news organizations have reported, Charbonnier had been under police protection since the firebombing, but he made clear that he would not be intimidated by threats of violence.

“It may sound pompous,” Charbonnier told the French daily newspaper Le Monde in 2012, “but I’d rather die standing than live on my knees.”

Eyewitness videos show that after Charbonnier and at least 11 others, including two police officers, were murdered, the killers shouted in the street before fleeing.

“God is great,” they yelled. “We have avenged the Prophet Muhammad. We have killed Charlie Hebdo.”

We journalists are frequently criticized for inflating coverage when one of our own is killed. This week has been no exception. Within hours of the Paris massacre, my Twitter and Facebook feeds were peppered with posts from those demanding to know why we weren’t pursuing with equal vigor the story of a homemade explosive that blew up Tuesday outside an NAACP chapter in Colorado Springs, Colorado.

Their outrage is understandable, but I would argue that so is our focus in the immediate aftermath of the Paris massacre. The Colorado Springs explosion reportedly did minor damage to the NAACP office and a barbershop in the building, but no one was injured or killed. The FBI is investigating.

I am writing this before we know the identities of all the victims in the Charlie Hebdo massacre. So much sad news to come. There will be official investigations, but we already know the killers’ dark hearts because of what they screamed — behind the anonymity of hoods, we should always emphasize.

We mourn our colleagues who die in war zones, but this one feels different because of where they were killed. They had simply shown up for work. If you’re a journalist, it’s too easy to imagine this happening again, to journalists somewhere else. To journalists anywhere else.

I understand that not everyone in the general public cares about the safety of journalists. I do ask that you try to understand why many people do. We are, after all, fellow humans.

Of course, we are seeing the inevitable criticism that Charlie Hebdo should have just stopped its habit of inciting. A desire to label satire as needless provocation illustrates its need. Extremists have always relied on fear to cripple their opposition.

Salman Rushdie spent years in hiding after Iran’s Ayatollah Ruhollah Khomeini issued a fatwa for his assassination because of his novel The Satanic Verses. On Wednesday, his support for the slain journalists and the magazine was unequivocal.

I stand with Charlie Hebdo, as we all must, to defend the art of satire, which has always been a force for liberty and against tyranny, dishonesty and stupidity. ‘Respect for religion’ has become a code phrase meaning ‘fear of religion.’ Religions, like all other ideas, deserve criticism, satire, and, yes, our fearless disrespect.

Mohammed Moussaoui, president of the Union of French Mosques, was also steadfast: “We condemn … this hateful, criminal act. … While the terrorists are intensifying their acts to exacerbate the confrontation inside our country, both Muslim and Christians have to intensify their actions to give more strength to this dialogue, to make a united front against extremism.”

By Wednesday afternoon, cartoonists from around the world had produced tributes to Charlie Hebdo and the journalists who were murdered.

Some news organizations blurred images of the magazine’s controversial illustrations in their coverage, but many others posted galleries of them. The entire newsroom of Agence France-Presse posed for a picture holding white-on-black signs, which read, “Je suis Charlie,” or “I am Charlie.” The hashtag “JeSuisCharlie” generated a Twitter thread as inspiring as it was informing.

On Wednesday evening, crowds gathered throughout France, including at Place de la Republique in Paris. Many raised pens in tribute to the slain cartoonists.

By the tens of thousands, they showed up, their faces visible to the world. Many of them chanted, “We are not afraid” and “We are all Charlie.”

This terrible thing happened.

Hope survived.

 

By: Connie Schultz-An Award Winning Columnist and  Essayist for Parade Magazine: The National Memo, January 8, 2014

January 9, 2015 Posted by | Free Speech, Journalists, Paris Shootings | , , , , , , , , | Leave a comment

“Will We Walk The Satirical Walk?”: Now Is The Time To Stop And Think About What Satire Really Means

“Satire is what closes on Saturday,” satirist George S. Kaufman wrote, satirically. It is worth unpacking what this quote really means. Ostensibly, it means that when you choose the rapier of satire rather than the comforting swaddle of mass entertainment, you are limiting your audience in a self-sabotaging matter: While you’re busy finding yourself clever, the crowd has moved on to giggle along with cute kittens singing catchy songs. Satire is satisfying, but generally speaking, the only people listening are the person doing the satirizing and those who already care enough to agree with him. Most people ignore him, or, if they do anything at all, call him a jerk.

In the wake of today’s tragic terrorist attack in Paris, which killed 12 people including top cartoonists at satirical French magazine Charlie Hebdo, the word “satire” has taken on its own power, its very existence a rejoinder to hatred, a founding pillar of Our Way Of Life. It is being cast as noble. But this is not how we usually see satire. Satire is usually a pain in the ass. Satire exists to discomfit the comfortable, to slaughter sacred cows, to puncture the illusion that we all live in a “polite” society. Satire is crude, and rowdy, and often self-aggrandizing: Satire is meant to call attention to itself in any way possible. Charlie Hebdo was particularly skilled at this: One cover, actually supporting the French law banning Muslim women from wearing burqas, featured a woman wearing a burqa … somewhere other than her head. Good satire is a little gross and cares not of taste. You want people to think … and you’re not against using a good dick joke to do it. Satire attempts, by its very nature, to shake people to alert.

But, mostly, people don’t like to be shaken to alert. They just want to go along with their day. They care a lot less about freedom of expression than they do freedom to go about their lives in peace. You’ve seen a lot of solidarity with Charlie Hebdo today, a strong defense of satire as a way of life. But it is worth noting that most publications aren’t showing the Charlie Hebdo cartoons. And it is also worth noting that Americans—the people supposedly so proud of their freedom of expression—haven’t always been on the side of the angels here. South Park’s attempts to show a cartoon of Muhammad were famously censored by Comedy Central—in an episode that explicitly stated that the lesson everybody learned was “the best way to get what you want is to threaten other people with violence”—and the Metropolitan Museum of Art quietly removed all images of Muhammad from its halls five years ago. Even when Charlie Hebdo was firebombed four years ago, Time Paris bureau chief Bruce Crumley wrote that it was “hard to have much sympathy” for the magazine and that “insisting on the right to be obnoxious and offensive just because you can is infantile.”

Charlie Hebdo would respond, “of course it is.” If you’re not being obnoxious or offensive, what are you even doing? One image shared in the wake of the attack today was an old cartoon from The Onion that showed, ahem, “an image of the Hebrew prophet Moses high-fiving Jesus Christ as both are having their erect penises vigorously masturbated by Ganesha, all while the Hindu deity anally penetrates Buddha with his fist.” (It’s quite the image!) The joke here, of course, is that those religions don’t attack those who show their gods in cartoon form … but that is also what makes the joke, and the image, ultimately sort of toothless. (While certainly inventive.) After all: You didn’t, actually, see Muhammad in that Onion picture. Obviously not. Who wants that heat?

But: If no one is offended, then what is the point? It’s all self-congratulatory faux enlightenment with no conviction behind it. It’s a back pat for “getting it,” without actually risking anything. The offense is the point. The offense is the defense of the way of life. Charlie Hebdo fought for—and its cartoonists and writers and editors and police protectors ultimately died for—the right to piss people off without regard of taste or civilized society or what you or anyone else thought of them. We all stand with them today. But will we stand with them tomorrow? Did Sony Pictures and those theater chains stand with them two weeks ago? Does Comedy Central, and the Met, stand with them now? We live in an open society—free, among other things, to be timid. It is encouraging to see the world embracing Charlie Hebdo’s principles of satire and aggressive engagement with extremists today. But I can’t help but fear this show’s gonna close by Saturday.

 

By: Will Leitch, Bloomberg Politics, January 7, 2014

January 8, 2015 Posted by | Free Speech, Freedom of Expression | , , , , , , , , | Leave a comment

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