The Supreme Court ruled in June that a man who used social media to make explicit violent comments directed at his exwife, coworkers, a neighborhood school—and the FBI—was not “threatening” because he didn’t intend his comments to be threatening. It is not my intention to argue with the Supreme Court justices on matters of law. What I am interested in is the implications of this decision.
Anthony D. Elonis had made a series of explicit and very violent posts on Facebook directed at his ex-wife, including how he would like to murder her. In each post, he overtly stated that he did not intend his statements as threats, and was “only venting.” Over the course of several months, he included violent posts against his coworkers, his boss and a neighborhood school. When the FBI investigated, he responded with a detailed post describing the violence he fantasized doing toward the FBI agent.
As a result, he was ultimately fired from his job and his wife asked for and received a protective order against him. The school, I believe, also received a court order barring him from their grounds. He was convicted of four counts of making threats, and sentenced to three years in prison.
The Supreme Court overturned the lower courts’ conviction of Mr. Elonis. At issue was the question of intentionality versus the “reasonable person” standard. There is an acknowledged tension in the law between a person’s intent to perpetrate harm, versus if a “reasonable person” might find the behavior harmful or threatening. The lower court ruled on the side of the “reasonable person” standard. The Supreme Court found that in most cases, the reasonable person standard applies to civil law, while intentionality is given more weight in criminal law, and thus overturned the conviction.
How do we distinguish when someone is venting from when they are threatening? Many of us have experienced someone doing or saying something genuinely threatening or harmful who claimed afterward, “I was just kidding.” Mr. Elonis’s behavior suggests that he did, in fact, intend to threaten and intimidate, strategically using his statements denying intention to cover his true intentions. His decisions to make these statements public, coupled with his deliberate attempts to ensure that the targets of his “venting” saw his rants, suggest strongly that he was goading them. Most people sincerely “venting” don’t intend that the person they are venting about will hear the vent. Most people who don’t intend to threaten someone else don’t directly send them the “non-threat.”
Mr. Elonis expressed not-so-subtle misogyny in the patterns of his posts. While he did express violence toward both men and women, his most specific, explicit and graphic posts were directed at his ex-wife, a female coworker, and the female FBI agent who questioned him.
I do not support inhibiting freedom of speech and expression. I am also not necessarily arguing that the Supreme Court was wrong in its decision. I am honoring the First Amendment by expressing concern with the decision. Upholding the First Amendment though, does not relieve us of a corresponding responsibility— yes, we have the right to speech and expression—a right I hold very dear. But we also have the responsibility of speech and expression. I can say whatever I want to, and I am responsible for the harm that results from what I say. I should be held accountable for any harm I might cause through my speech and actions.
Some will argue that getting fired and having a protective order filed against him were examples of the ways Mr. Elonis was held accountable for the harms he caused through the exercise of his freedom of speech. I don’t minimize these forms of accountability. However, part of accountability is also being responsible for the harm caused. We have not heard from Mr. Elonis’s ex-wife, his children, his coworker, or others in the community about the impact of his statements on their lives and well-being. Being accountable includes carefully considering the other person’s experiences when deciding what level of accountability is warranted. This is a standard we use in our daily lives. If I unintentionally hurt someone’s feelings, it is my responsibility to apologize and make amends roughly to the degree that their feelings were hurt. Based on the facts of Elonis v. United States as described, the level of accountability Mr. Elonis faced was not commensurate with the harm he caused.
Finding the balance between intentionality and the impact of one’s behavior on others can be elusive. This Supreme Court decision does nothing to help us find that balance.
Rus Ervin Funk coordinates the Own It Initiative, an effort of the Center for Women and Families of Louisville, Kentucky, to engage and empower men to stand up and speak out against genderbased violence. To learn more, contact Rus at rus.funk@cwfempower.org.
