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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 Infinite Circle Of Black Responsibility”: Part Of The Privilege Of Whiteness Is You Don’t Have To Have Responsibility For Anyone Else

In 2006, after being a United States senator for one year, Barack Obama made an appearance on Meet the Press. After talking about the Iraq War for a while, Tim Russert asked Obama this: “I want to talk a little bit about the language people are using in the politics now of 2006, and I refer you to some comments that Harry Belafonte made yesterday. He said that Homeland Security had become the new Gestapo. What do you think of that?” Obama said he never uses Nazi analogies, but people are concerned about striking the balance between privacy and security. Russert pressed on, asking Obama to take a position on whether some insulting things Belafonte had said about George W. Bush were “appropriate.”

I thought of that interview today as I watched another interview, this one with Bill O’Reilly interviewing White House aide Valerie Jarrett. I bring it up not because it’s important to be mad at Bill O’Reilly (it isn’t), but because it’s yet another demonstration of the rules both prominent and ordinary black people have to live with. Unlike white Americans, they are subject to an entirely different and far more wide-ranging kind of responsibility. A black senator has to answer for the remarks of every black activist, black musicians are responsible for the actions of every wayward teenager, and black people everywhere carry with them a thousand sins committed by others. That burden isn’t just psychological; as we’ve seen in cases like those of Trayvon Martin and Jordan Davis, it can be deadly.

Yesterday, President Obama held an event at the White House called “My Brother’s Keeper,” to encourage people to help create more opportunities for young men of color. Afterward, O’Reilly told Jarrett that on “the streets,” there’s a problematic culture. “It’s not just blacks—it’s the poor, and the hard core, what they call ‘gangstas.'” He went on: “You have to attack the fundamental disease if you want to cure it. Now I submit to you that you’re going to have to get people like Jay-Z, all right, Kanye West, all of these gangsta rappers, to knock it off.”

You may laugh at the idea that disproportionately high levels of incarceration among young black men can be laid at the feet of Kim Kardashian’s husband. And I’m pretty sure that crime in America predates “Straight Outta Compton,” though we might have to look that up. But the truth is that Bill O’Reilly could hear a rap song about butterflies and rainbows, and the first thing to pop into his head would be “gangsta rap!” because it’s black people rapping.

And in this, O’Reilly resembles Michael Dunn, the man who gunned down Jordan Davis over his music. Over and over in his jailhouse writings, Dunn references the “culture” around rap music as one of criminality and danger, citing it as the source of crimes committed by black people. So naturally, when he heard that music coming from the next car over, he thought he was about to be the victim of a drive-by, and the only alternative was to pull out his gun and start firing first.

This is about the collectivization of every misdeed committed by a black person, the way all black people are implicated and have responsibilities imposed on them. When a white man beats his children or kills his wife or robs a liquor store or commits insider trading, nobody tells Bill O’Reilly that he, as a white person, needs to do something about it. And he sure as hell doesn’t go on the air and say that white people need better role models. There isn’t a thing called “white on white crime,” but there is a thing called “black on black crime,” because crimes committed by black people are black crimes, born from blackness and soiling all black people, but crimes committed by white people have nothing to do with the race of the perpetrators; they’re just crimes, no modifier needed.

My guess is that if you asked Bill O’Reilly what responsibility white musicians or white politicians have for the thousands of white crimes committed every year, he would have no idea what you’re talking about. It would sound like gibberish to him. As I’ve written before, a big part of the privilege of whiteness is that you don’t have to have responsibility for anyone else. You can be just yourself. The security guard is not going to follow you around in a store because some other white person shoplifted there last week. A TV host is not going to demand that you defend something stupid another white person said, for no reason other than the fact that the two of you are white. No one is going to think that because of the music you’re playing, it might be a good idea to fire ten bullets into your car.

Creating that broad black responsibility doesn’t just happen, it has to be reinforced and maintained. Nobody does it with more vigor than Bill O’Reilly and the rancid cauldron of race-baiting that is the network for whom he works. The real mystery is why the White House keeps trying to court him. They actually invited him to that event yesterday.

 

By: Paul Waldman, Contributing Editor, The American Prospect, February 28, 2014

March 1, 2014 Posted by | Bill O'Reilly, Racism | , , , , , , , | 1 Comment

“Guns And The Thug Life”: There Was Only One Thug In That Convenience Store Parking Lot, And It Wasn’t Jordan Davis

On Saturday night, the jury in the case of Michael Dunn rendered a strange verdict, convicting Dunn of attempting to murder the three teens who survived the hail of fire he sent at their car, but deadlocking on the charge of murdering the one he succeeded in killing. We may never know what went on in the jury room, but if nothing else, Dunn will not be driving into any more parking lots and getting into any more arguments that end in death, at least not for some time.

This case is, of course about race, which we’ll get to in a moment. But it’s also about—to use a word that crops up repeatedly in Michael Dunn’s written comments—a culture. It’s a culture where manhood must continually be proven, where every disagreement is a test of strength, and where in the end, your fellow human beings are only waiting to kill you, so you’d better draw first.

This was the culture of violence that Michael Dunn carried with him to the convenience store, the one that ended the life of 17-year-old Jordan Davis. It was Dunn’s manic hyper-vigilance, his fear, and the .45 he carried with him that brought death to the parking lot.

Dunn’s defense was built on his belief that he saw something that looked like the barrel of a shotgun (or maybe a pipe) emerge from the window of the car holding the teenagers with whom he was arguing about their music, though no shots came from their car and the police never found any gun. Unlike many people, I have no trouble believing that, for an instant at least, Dunn really did think he saw a gun. I also suspect that he realized afterward that there was no gun, which would explain why he never mentioned it to his fiancée.

What we do know is that when he encountered those black teens, Michael Dunn was sure he was facing down a group of dangerous criminals who might well try to kill him at any moment. We don’t have to wonder whether Dunn is a racist, because his own words make it pretty clear. The letters he wrote to family and friends while awaiting trial are full of statements describing black people as violent criminals who hate whites. “I’m not really prejudiced against race, but I have no use for certain cultures,” he wrote. “This gangster rap, ghetto-talking thug ‘culture’ that certain segments of society flock to is intolerable.” He wrote to a family member, “I just got off the phone with you and we were talking about how racist the blacks are up here. The more time I am exposed to these people the more prejudiced against them I become. I suppose the white folks who live here are pretty much anti-black, at least the ones who have been exposed to them.” And from another letter: “Remember when your mom was robbed? At gunpoint? Black thug.”

So when Dunn arrived at the store and heard that loud rap music, what it meant to him was clear: These are dangerous thugs. After all, they’re young and black, and they’ve got that awful rap music playing, right? And once he began to argue with them, you can bet that he was on high alert, ready to draw his weapon. Think about the last time you got into an argument. Your heart rate accelerated, the adrenaline started pumping, you entered into a state of heightened agitation and awareness. This physiological reaction was bred into us by millions of years of evolution, the fight-or-flight response to danger that ensured the survival of our ancestors.

The 7-11 is not the savanna, but Michael Dunn plainly believed he was a water buffalo surrounded by hyenas. So this time, he would be the predator. He grabbed his gun, exited his car, got down on one knee, and began to fire. And then he kept on firing, ten shots in all, even as the car drove away to escape him.

Just like the case of Curtis Reeves, the Florida man who shot and killed a man who irritated him by texting in a movie theater during the previews, the argument began over the most mundane thing, but ended in death. Michael Dunn couldn’t abide that loud rap music. Curtis Reeves got popcorn thrown at him, and threw back a bullet.

In a reasonable world—or in most countries other than ours—arguments like those would end with someone muttering “Jerk!” under his breath, then getting back to what he meant to be doing beforehand. An hour later, he’d think of the perfect retort that would have put that guy in his place. But in the world gun advocates have made, the result isn’t frustration or resentment, but death.

In his letters, Michael Dunn refers to black men, again and again, as “thugs.” But there was only one thug in that convenience store parking lot, one person who was ready to unleash violence at a moment’s notice, one man whose regard for human life had departed him somewhere along the course of his days. That thug wasn’t the 17-yead-old black kid. It was the 47-year-old white guy holding the gun.

 

By: Paul Waldman, Contributing Editor, The American Prospect, February 17, 2014

February 18, 2014 Posted by | Gun Violence, Racism | , , , , , , , , | Leave a comment

“A Few More Thoughts On Thug”: The Words We Use Are Often Encoded With Racial Presumptions And Expectations

“I hate that thug music.”

This, according to Rhonda Rouer’s testimony last week, is what her fiancé, Michael Dunn, said when they pulled into a Jacksonville, FL gas station next to an SUV full of black kids who had the stereo up high, pumping some obnoxious, bass-heavy rap.

Rouer was inside the convenience store when she heard the shots. Dunn, who is white, had gotten into an argument with the young men about their music, had gone into his glove box for his pistol, and started shooting. As the SUV tried to get away, he fired still more rounds. At least one of those rounds fatally struck 17-year-old Jordan Davis.

Dunn drove to his hotel. He did not call police. He ordered pizza. The next morning, he drove home to Satellite Beach, 175 miles south, where police arrested him. Dunn claimed he shot at the SUV because Davis threatened him with a gun. Davis was unarmed.

Dunn is now on trial for murder. He’s claiming self-defense in the November 2012 shooting, saying he felt threatened, though his victim wielded nothing more dangerous than the aforementioned “thug” music.

And we need to talk about that word a moment. But first, let’s try a thought experiment: Close your eyes and picture a California girl. Close your eyes and picture a chess prodigy.

Chances are, you saw the former as a sun-kissed blonde in a bikini running along a beach in slow motion and the latter as a studious-looking boy in owlish glasses. Chances are you saw both of them as white.

Now, close your eyes and picture a thug.

It is exceedingly likely the person you pictured was black, like Jordan Davis.

The point is, the words we use are often encoded with racial presumptions and expectations. Thus, your image of a California girl is more likely to resemble Farrah Fawcett (born in Corpus Christi) than Tyra Banks (born in Los Angeles) and your idea of a prodigy will not include Phiona Mutesi, a teenage chess champion from Uganda.

And thus “thug” becomes the more politically correct substitute for a certain racial slur. This is why Stanford-educated black football player Richard Sherman was called a thug for speaking loudly in an interview, but singer Justin Bieber was just a “bad boy” while facing charges of vandalism, assault and DUI.

And it is why, in jailhouse letters released to the media, Dunn uses that word to describe the boy he shot. But he doesn’t stop there. “The jail is full of blacks,” he writes, “and they all act like thugs. This may sound a bit radical but if more people would arm themselves and kill these (expletive) idiots, when they’re threatening you, eventually they may take the hint and change their behavior.”

In other letters he decries the lack of sympathy from the “liberal b—–ds” in the media, and takes heart that the counties surrounding Jacksonville are dominated by white Republican gun owners. He writes, “The jail here is almost all black prisoners. You’d think Jacksonville was 90-95 percent black judging by the makeup of the folks in jail here!”

What he describes, of course, is the great Catch-22 of African-American life. They decide you’re a thug from the moment you’re born, so they lock you up in disproportionate numbers. Then they point to the fact that you are locked up in disproportionate numbers to prove that you’re a thug.

Michael Dunn is a hateful man, condemned as a racist by his own words and deeds. But that’s his problem. Ours is that this sickness is not confined to him. And that it causes blindness, rendering sufferers unable to see what is right in front of them.

So one can only wonder with dread how many of us gaze upon this man who shot up an SUV full of unarmed kids, then fled the scene, and see a victim.

And how many will see a “thug” in a teenager just trying to dodge the bullets.

 

By: Leonard Pitts, Jr., The National Memo, February 12, 2014

February 13, 2014 Posted by | Gun Violence, Racism | , , , , , , , | Leave a comment

   

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