First Amendment Should Not Protect Anthony Elonis’ Speech

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Anthony Elonis doesn’t deserve to be a First Amendment martryr.

Of course, an awful lot of America’s free-speech champions  turned out to be folks you wouldn’t want to have over for Sunday dinner. Larry Flynt is a pornographer. Fred Phelps, a homophobe with a penchant for picketing funerals. Clyde Brandenburg? A Klansman. Raging a-holes have made this country safe for the First Amendment.

Elonis apparently wants to join that roster — his case goes before the Supreme Court today — and he’s got all the usual suspects backing his claim: The ACLU, and a host of other groups have all filed friend-of-the-court briefs on his behalf. Normally, I’m on their side. This week I’m not.

Here’s why: Offensive speech should be protected. Distasteful expressions are covered by the First Amendment. But threats of violence that cause women, children, and FBI agents to fear for their lives? No. Free speech is not absolute. It does not — should not — give one license to terrorize other people.

And that’s what Elonis is accused of doing.

Here’s what happened — all of the following is taken from the case documents filed at Scotusblog: In 2010, the Lower Saucon Township man lost his wife and his job in short order. And he began posting, well, pretty extreme commentary to his Facebook page in the days that followed. (This story is being widely reported as a case about “online speech,” but the medium matters less than the content.) “I’m not going to rest until your body is a mess,” Elonis wrote, “soaked in blood and dying from all the little cuts.”

He was just getting started.

After his wife got a protection-from-abuse order, keeping him away, Elonis wrote:

Fold up your PFA [protection-from-abuse order]

and put it in your pocket

Is it thick enough to stop a bullet?

The next day, he wrote a new comment:

That’s it, I’ve had about enough

I’m checking out and making a name for myself

Enough elementary schools in a ten mile radius

to initiate the most heinous school shooting ever

imagined

And hell hath no fury like a crazy man in a

kindergarten class

The only question is … which one?

And after that comment provoked a visit from a pair of FBI agents, he posted that he would detonate a bomb if anybody tried to arrest him:

You know your shit’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 bitch

ghost

Pull my knife, flick my wrist, and slit her throat

Leave her bleedin’ from her jugular in the arms of

her partner

Now, there are two official court-approved standards for judging speech like this:

• You can decide that a reasonable person would’ve felt threatened by Elonis’ comments and convict accordingly. (You probably will not be surprised to learn that, using this standard, Elonis was convicted and sentenced to 44 months in prison, after hearing testimony from his wife that she did indeed feel threatened.)

• Or you can apply a tougher-to-prove standard requiring a judge and jury to determine that the speaker intended his comments to be terrifying. Why that’s a tougher standard? Because none of us are mind-readers. And under this standard, we’re apparently not allowed to assume from the plain meaning of a defendant’s words that he intends to terrorize — because, well, all that stuff about stabbing and shooting? He might just be kidding around, and do we really want to put Anthony Elonis in prison if he was just farting around, blowing off a little steam?

Yeah, I do.

What’s the old saying? Your right to wave your arms around wildly ends where my nose begins. Well: Your right to express extreme anger ends when it involves plausibly making me think you’re going to kill me.

Elonis and his allies want the second, tougher standard applied to this case. The Reporters Committee for Freedom of the Press is worried that if Elonis isn’t protected, journalists will have fewer protections for controversial stories. The ACLU doesn’t want free speech criminalized just because a speaker failed to realize his comments would be terrifying. The Thomas Jefferson Center for the Protection of Free Expression is worried we’ll somehow lose the gift of Larry Bird’s on-court trash-talking. (Really.)

This one time, I think these groups are wrong. I don’t think the First Amendment is so fragile that it has to support threats of domestic violence in order to remain standing. If it is, we’re in trouble anyway.

It is the National Network to End Domestic Violence that has it right: “This case is not about political speech. It is not about ideological, religious, or social speech. It is not even about distasteful or offensive speech. This case is just about threatening speech — words that threaten violence.”

Right. You have every right to offend me. You have every right to piss me off, and almost every right to provoke me. You have the right to tell me things I don’t want to hear.

But.

You don’t have every right to even negligently make me worry by your plain statements that I might die a violent, gruesome death. And Anthony Elonis doesn’t have the right to enter the history books as a winner at the Supreme Court.

Follow @JoelMMathis at Twitter.