Aphra and Liss Talk About Elonis v. United States

[Content Note: Threats; harassment; violence; silencing. Posted with Aphra_Behn's permission.]

Aphra: Did you see this [New York Times piece on Elonis v. United States, currently before the US Supreme Court]? So, according to the New York Times, intent is magic, and we should definitely prioritize free speech over women's safety. What the everloving fuck. I have a bad feeling about how The Supremes are gong to rule on this, and I have a terrible feeling about what that will mean for women, including women who dare to have a public presence in the world.

Liss: Yeah. I read that this morning, and I am honestly feeling all kinds of ways about writing about it. Like, mainly, that I don't want to, because I can't get past my sheer terror about what this is going to mean for me and you and every other woman who has a life online in the future. I was shaking reading it. How do they not know that EVERY DUDE who makes threats like this knows FULL WELL that "I was just joking" or "I didn't really mean it" or "I was just blowing off steam" absolves them of all accountability? And they're going to help them pull that shit? Terrific.

Aphra: I know. I KNOW. And you know what? I've been reading several opinions about this, and way too many seem to think that it is more newsworthy to note that Justice Roberts quoted Eminem, hardee har har, than to mention that this would be KIND OF A BIG DEAL for domestic violence cases and for online harassment. In other news, I was sort of shocked to find myself rooting for Alito, since he's the only justice who reacted to the arguments by saying adopting the "true intent" standard would make for "a very grave threat of domestic violence." WHUT.

Liss: Alito? ALITO?! WHAT IS EVEN HAPPENING? I find it really disturbing that, yet again, there is precious little concern about how allowing threatening speech under the auspices of free speech actually curtails the free speech of the people at whom threatening speech is directed. If the government says, "People are allowed to threaten you indefinitely and with impunity" to me, that puts me in the position of making difficult choices about what I can and can't safely say publicly. They are actively abetting the curtailing of speech that is likely to result in threats, intimidation, and harassment. Doesn't that matter?

Aphra: YES YES YES omg THAT!!!!! Because the threat itself is enough to make you shut up. The threat itself is a goddamn crime. The Atlantic had a decent piece about this using a bomb threat to a high school as an example—whether "intended" or not, it still results in canceled class (loss of instructional time), lots of work by admins and teachers, lots of work from the police, maybe calling out the bomb squad...those are real losses from the threat. Because you can't afford to be weighing or not how "serious" it is. There should be the exact same logic applied to women receiving threats via social media. How the fuck do I decide if it's "real" or not? And do I just magically decide it's not real and wave away the physical and mental effects? Also: escalation, how does it work?

Liss: I don't even know why on earth anyone would think it is a good idea EVER to define the severity of a crime by the intention of the person who perpetrated it. I mean, I get the point of differentiating between causing someone's death accidentally and deliberately, but even the whole "premeditated murder" vs. "murder of passion" distinction is pretty irrelevant, AFAIC. "Oh, this creep who sent me a threat every day for six months didn't INTEND to make me feel like I don't even want to walk outside to get the mail? Okay, then. By all means, protect his fucking SPEECH."

Aphra: Right! And how on earth does the threat being sent to you via Twitter differ from it being mailed or emailed? Does that mean threats are okay if you post them on a fucking billboard? I hate everything about this. You know, if this case and the pregnancy case end up like the Hobby Lobby ruling, I guess we'll have a pretty good indicator of the Supreme Court majority's ideal women: pregnant, unemployed, and terrified. HOW VERY NEAT.

Liss: Sob.