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Internet 'expression' v. freedom of speech

Christine M. Flowers

By Christine M. Flowers Philadelphia Daily News/(TNS)

Published December 8, 2014

Internet 'expression' v. freedom of speech

When you write anything for public consumption, and when it ends up on the web in some shape or form, you can be absolutely certain that unless you are the pope (and even when you are) there will be objectionable comments from the peanut gallery. And, despite my almost fanatical devotion to the concept of Free Speech, I've developed a peanut allergy.

That's my fey and not-so-clever way of saying that I'm not a huge fan of the more vitriolic opinions that bubble up from the tarry depths of the Internet, to the extent that I usually ignore them. I used to read almost everything people would write in response to my columns, but that ship-as ill-fated as the Titanic-sailed years ago.

Every now and then, however, word gets back to me about something someone wrote online, and I am reminded of just how foul some human beings can be in their thoughts if not their actual actions. This recently occurred to me when I wrote about statutes of limitations and a pyjamaed, basement-dwelling Neanderthal who spends most of his time cashing mama's Social Security checks lodged a threat against a family member.

I really don't care what they say about me, and I've heard it all, usually from women who believe in choice, namely, the choice to defame women who disagree with them on reproductive matters. But when you start attacking family members, I draw the line in the virtual sand.

That's why I paid particular attention to the oral arguments held this Monday at the Supreme Court concerning Internet "expression" and whether comments can rise to the level of illegal, unconstitutional threats.

It's always interesting to watch the court when it weighs the relative value of speech because so much of our identity as a nation is defined by our ability to express ourselves without constraint. The First Amendment only truly applies to prospective interference by the government, although there are so many quasi-governmental entities in the country that Uncle Sam isn't the only one that gets sued.

In the case before the court, an estranged husband from our own backyard in the Third Circuit had been convicted of threatening his wife, violating a law that barred threats over the Internet. Anthony Elonis, an Allentown native, had claimed that he was just like any rapper out there talking about what he'd like to do to the "ho that did him wrong, dawg" (As we have come to see, poet laureates are not the ones who are most in need of those First Amendment protections.)

Some of the things that Elonis wrote on his Facebook page were extremely disturbing. But Elonis' attorney argued that even though comments like "And I am not going to rest until your body is a mess/soaked in blood and dying from all the little cuts" could appear threatening (these must be Harvard grads,) it was important to look at the subjective intent of the writer/speaker and not the language's effect on the reader/listener.

Frankly, that's a very dangerous road to start traveling down and it flies in the face of what I learned as a lawyer about the "reasonable man." While it may be difficult to find a reasonable man in this age of expression on steroids, it's necessary to have some kind of standard so that we don't have to wade into the fetid mental waters of the kind of people who think threatening to shoot up a kindergarten is OK (yes, Elonis did that too.)

Not surprisingly, the ACLU and other civil libertarians have come down on the side of the mediocre rapper boy from Allentown and have urged the court not to find Internet threats to be as bad as, say, yelling fire in a movie theater. And the high court itself has made some major mistakes in the past in this area as, for example, when it held that burning a cross is not necessarily "threatening expression." (Tell that to anyone who grew up black in the 1950s.)

As someone who regularly gets attacked for her opinions — and welcomes dancing around in that hot kitchen — I can tell the difference between blowing off steam and real threats. I don't need to get inside the head of every person who wants to see me drawn and quartered, or forced to date Bill Maher, which is obviously equally unpleasant. And I also don't need a psychology degree to perceive true malicious intent when its directed at one of my family members.

Free speech is a wonderful thing, and an important one. But criminals cannot hide behind the beauty of the First Amendment to shield them from their just deserts. A pissed-off husband with delusions of Eminem grandeur is not the type of person Oliver Wendell Holmes was talking about when he wrote: "I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

Or then again, maybe he was.

Christine M. Flowers
Philadelphia Daily News
(TNS)

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Christine M. Flowers is a lawyer and columnist for the Philadelphia Daily News.

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