An ex-husband started posting nasty remarks about his wife and his co-workers on Facebook. One of them said, “There’s one way to love ya but a thousand ways to kill ya. I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.’’ The ex-husband was tried and convicted of using interstate commerce to make threats. Along the way, the ACLU and other 1st Amendment hawks have taken this to the Supreme Court as a free speech case, where it was argued on Monday (December 1).

If I were standing in front of you and I said fiercely, “I’m going to kill you!” I would probably be criminally liable for assault…

The ex-husband claims he did not intend to hurt his wife – he was only expressing his emotions through art and satire. He says that his conviction violated his 1st Amendment rights to satirize his wife and divorce by repeatedly writing down his hopes to hurt and kill her. He also says that he couldn’t be convicted of threats since he didn’t intend to hurt his ex-wife. So, this case gloriously gives us two questions to answer:

  1. 1. To be guilty, does this online harasser have to have intended to hurt his ex wife or is it enough that his ex-wife took him seriously?
  2. 2. Does he have a 1st Amendment right to express his hopes to hurt and kill his ex wife?

These two questions get mushed together by the 1st Amendment hawks who say that the harasser had to actually intend to harm his ex-wife and that without that intent, convicting him is unconstitutionally criminalizing his protected speech. I believe the legal term for that argument is “bullshit.”

We have a chance here to love the 1st Amendment without fetishizing it. The 1st Amendment says there shall be “no law … abridging the freedom of speech.” That means there should be no law that impairs your ability to talk about public affairs, public figures, religion, taxes, literature, cooking, porn, Nickelback or any of the things that engender civilized society. But, that “freedom of speech” has limits. My 1st Amendment rights don’t protect me from saying unkind, untruthful things about you, or from claiming your prose as my own, or from asking someone to kill you. “Freedom of speech” is balanced against other freedoms that are as or more important for a civilized society. The words I utter are not so sacred that I can use them to rob you of your reputation, your property or your life.

Since most female murder victims are usually killed by their intimate partners, there seems nothing satirical about an ex threatening an ex.

So, why should my freedom of speech trump your right to freedom from terrorism? Of all the freedoms, the most basic one is freedom from physical danger. Seriously, not getting beaten up or attacked seems the absolute least you should be able to expect. Empowering a person to use words to terrorize someone seems the opposite of freedom, the opposite of the broad speech that we must protect. This is no slippery slope. There are miles and miles to cross before prohibiting me from deliberately terrorizing you leads to prohibiting me from denouncing your ideas. I see nothing inconsistent between freedom of speech and freedom from harm.

The ACLU (of which I am ordinarily a grateful fan) argues that we can’t create barriers to speech that make the speaker stop and consider the impact those words will have on the audience, because that “chills” speech by smudging the line between what we protect and what we don’t. To me, the line is clear and bright. If I say or write that I hope to defeat your reelection, I can disregard the impact my words will have on your feelings. But, if I say or write that I hope to hurt or kill you, I should stop and realize I crossed a line into unacceptably terrifying behavior. I don’t know about you, but I often have to stop and think about what I’m about to say to avoid defaming someone, but I still find plenty of things to say. Don’t criminalize offending people – criminalize deliberate statements containing threats of serious violence.

It would be a macabre joke if the retrograde majority of old white male Supremes agreed that the ex husband’s threats were “satire.” Since most female murder victims are usually killed by their intimate partners, there seems nothing satirical about an ex threatening an ex. In any event, the ex wife’s right to freedom from physical danger is at least equal to the ex-husband’s right to utter threats. In fact, her right to freedom from physical danger ought to trump his right to speak, because threats of violence should never be protected speech. This case gives us a chance to say we will not protect speech designed to squelch other speech through terror, intimidation and physical fear.

I love the 1 st Amendment, but I love real freedom more.

By the way, these threat and assault questions are not unique to social media, but the results are. If I were standing in front of you and I said fiercely “I’m going to kill you,” I would probably be criminally liable for assault – I threatened physical harm and I was physically able to carry out the threat. But, if I tweet to you “I’m going to kill you,” I would probably at this point not be criminally liable for assault since I’m not physically around to carry out the threat. Except, it is precisely my absence that makes my threat so much more terrifying. If I’m standing in front of you when I make a threat, you can dissipate that threat by leaving the scene or defending yourself with any handy weapon. But, if I am a virtual terrorist, you never know where or when I will strike. There is nothing you can do to dissipate the terror I created. So, why would my right to speak freely trump your right to live safely.

With a growing movement of (presumably) men harassing women online and no emerging solutions to stop them, this is a gigantic case. Women are harassed much more online than men, often to silence women who have spoken out about equality. This case – like so many others that don’t climb to the top – is really a contest between the rights of women to be free from assaults on our right to live securely and the rights of online trolls to attack anonymously. I love the 1st Amendment, but I love real freedom more.


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