“Mommy, I didn’t mean to hurt him! We were just playing a game. Johnnie was a super villain, so I clobbered him! We were just playing make believe. Is he in a real hospital?”
…This is the type of thinking you might expect from a 3-year-old. Did you know it was enough to win a case before the United States Supreme Court recently?
You will be getting a law professor’s take on this today, as our returning guest is Mary Anne Franks of the University of Miami School of Law.
Prof. Franks’ research and teaching interests include cyberlaw, self-defense, bias, free speech, and privacy. Her academic scholarship has appeared in the California Law Review, the UCLA Law Review, and Columbia Journal of Law & Gender, among others. She has also published articles in the Atlantic, the Guardian, the Independent, and is a contributor to the Huffington Post. Prof. Franks serves as the Legislative and Tech Policy Director and Vice-President of the Cyber Civil Rights Initiative, a nonprofit organization that raises awareness about online harassment and advocates for legal and social reform.
• University of Miami School of Law professor, Dr. Mary Anne Franks, discusses the Supreme Court decision of the Elonis case
• Mr. Elonis posted “lyrics” to his Facebook page about having his wife killed, wanting to assault her, wanting to blow up a kindergarten, among other wishes.
• Disappointing decision dealt with very narrow legal issue
• Statute involved was unclear on what constitutes a “threat” – does it depend upon the speaker’s subjective intent, or upon the audience’s fearful reaction?
• Why those working to stem domestic violence are concerned about the impact of this decision
• Successes of the Cyber Civil Rights Initiative with large high tech firms to voluntary ban revenge porn and with proposed federal legislation
Professor Franks explains the pros and cons of the Elonis case and decision, in which SCOTUS side-stepped dealing with significant free speech and online issues. Instead of a substantive First Amendment decision about what constitutes a threat and whether or not the articulation of threatening language over social media has something to do with the nature of what should be considered a threat, the decision parses a vague statute. When it speaks of a threat, does it mean that the speaker thinks of it as a threat or that the audience thinks of it as a threat?
The court’s decision supports the notion that a subjective intent to threaten must have been held by the speaker in order for speech to be considered threatening and outside the protection of the First Amendment. A subjective assessment of the speaker’s intent is pivotal. Do we think of a threat as something that causes fear in people, or do we think of a threat as something the speaker intends to cause fear? The decision of SCOTUS was based on the idea that Elonis was convicted without proof that he knew that what he wrote and the ordinary meaning of his words would be a threat.
With regard to domestic violence victims, this decision appears to make it even less likely that abusers can be called to account through criminal law proceedings. In what is already a difficult road for those experiencing domestic abuse, this decision appears to offer the abuser another defense—that it cannot be proven he (or rarely, she) intended to do more than express himself artistically or engage in “therapeutic” letting off of steam through self-expression.
In most countries, law has not kept pace with technological innovation. American criminal laws dealing with threats, harassment, and stalking were written pre-Internet. Judicial interpretation extending them to the online environment could offer some hope to people experiencing sometimes daily harassment, but SCOTUS decision in Elonis does not forward that cause.
The Constitution is quite helpful in protecting us from despotic government. The Bill of Rights, particularly, sets up safeguards to prevent the federal government from trampling on citizens’ rights. These restrictions, such as not being able to silence speech contrary to the interests of the government, do not prevent individuals or companies from upholding their own Community Standards, such as at parties in private homes or communication through online social networks. Yet, sites such as Facebook, Google, or Twitter, etc., seem to have been reluctant to banish anti-social communication, such as revenge porn, misogyny, etc., which amount to hate-speech online.
Through their work within Cyber Civil Rights Initiative, Mary Anne Franks and attorney, Carrie Goldberg have been working closely with large tech companies to advise them on measures to take to reduce non-consensual pornography (revenge porn) on their platforms. Facebook, Google, and Twitter have announced removal of such material. [http://nymag.com/thecut/2015/06/how-tech-companies-are-fighting-revenge-porn.html] They have also been advising on a federal revenge porn bill sponsored by U.S. Representative Jackie Speier (D-California). [http://www.dailydot.com/politics/federal-revenge-porn-bill/]
Dr. J looks forward to hearing from you through email to firstname.lastname@example.org or a Tweet to me @socialnetshow2
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Mary Anne Franks is a Professor at the University of Miami School of Law. She teaches, Criminal Law, Criminal Procedure and Family Law. Professor Franks is also the Vice President of the Cyber Civil Rights Initiative which is a nonprofit organization that raises awareness about cyber harassment and advocates for legal and social reform. This work has allowed her to work with legislators to draft laws against “revenge porn”.
Before working at the University of Miami Law School, Professor Franks was a Bigelow Fellow and lecturer in Law at the University of Chicago Law School and a lecturer in Social Studies at Harvard University. She received her J.D. from Harvard Law School and received her D. Phil and M. Phil from Oxford University where she studied on a Rhodes Scholarship. (D. Phil and M. Phil, U. S. equivalent of doctor of philosophy and master of philosophy. Professor Franks earned her degrees in Modern Languages and Literature).
You can connect with Professor Franks on the CCRI website or on Twitter.