Cyber Stalking Just Got Harder to Punish

by Diane Dimond on June 8, 2015

Ubiquitous Threats, Some Are Criminal

Ubiquitous Threats, Some Are Criminal

What if you got a message on your Facebook account from someone you knew was angry with you that read, “There’s one way to love ya but a thousand ways to kill ya.” You might be a bit worried, right?

What if that person continued to write things like, “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” And they followed up with musings about putting your “head on a stick,” and making a name for themselves with “the most heinous school shooting ever imagined.”

Would the phrase, “Hell hath no fury like a crazy man in a kindergarten class,” prompt you to pick up the phone and alert the police? I sure hope so.

Well thanks to a new ruling from the U.S. Supreme Court there might be no grounds to arrest someone who writes such terrifying threats.

Have They Lost Their Common Sense ?

Have They Lost Their Common Sense ?

What has happened to our common sense?

The case stems from actions by Anthony Elonis of Bucks County, Pennsylvania after his estranged wife got a restraining order to keep him away from her and their two children. Elonis was ordered not to post threatening messages about his wife but he ignored the order.

About a week later he wrote on Facebook, “Fold up your protective order and put in your pocket. Is it thick enough to stop a bullet?”

He also wrote about slitting the throat of the female FBI agent who came to investigate his threat against school children.

Threatened His Ex, FBI Agent & School Kids - Record Wiped Clean

Threatened His Ex, FBI Agent & School Kids – Record Wiped Clean

Elonis, then 29, would tell a judge he didn’t mean to frighten anyone. He insisted his words weren’t true threats but therapeutic rap lyrics he composed during a rough period of his life.

A jury ultimately convicted him under a federal law that makes it a crime to communicate any threat to injure another person. Elonis was sentenced to nearly four years. He appealed and his case advanced to the U.S. Supreme Court.

In handing down their ruling the high court vacated Elonis’s conviction. The Justice’s majority opinion declared that the point of siding with the defendant had nothing to do with his claim of freedom of speech but, rather, the prosecutor’s failure to prove the defendant’s intent at the time he wrote those brutally violent taunts.

Really? The justice system is supposed to prove what was on the mind of someone – their intent – when they wrote terroristic messages?

Internet Bullies Use All Sorts of Internet Sites

Internet Bullies Use All Sorts of Internet Sites

As an investigative reporter for many years I’ve been on the receiving end of some of the most hateful online messages you can imagine. Those that question my motives or impugn my honesty roll off my back. But some contain violently sexual threats, brutal ways to kill or maim me, including this most memorable one as I covered a controversial criminal trial: “My friend and I will push you down outside the court. While she scrubs your face with steel wool I will scoop out your eyes with a spoon.”

The L.A. Cyber Crimes Unit got involved once, the FBI on another occasion. Both ultimately told me there was nothing they could do to make the intimidating writers stop.

After She Finds Strength to Leave His Threats Continue OnLine

If She Finds Strength to Leave He Can Threaten Online

For me it comes with the professional territory but not so for the countless victims of domestic abuse and other crimes who are virtually paralyzed by these terrifying threats. That the nation’s highest court now dismisses their abject fear by ignoring the long standing “reasonable person standard” – (the idea that any reasonable person would find such words threatening) – in favor of “proof of intent” sends a shiver down my spine.

Anti-stalking statutes nationwide rely on the reasonable person standard. Now that guideline is in doubt and it is a sure bet that prosecutors will be more reluctant to bring charges against these cyber terrorists.

It is way past time for Congress and/or state legislatures to pass meaningful cyber-threat laws. Vulnerable citizens should not have to live in fear. We condemn threatening hate speech on the street, why not on the internet?

If cyber bullies realize there is jail time attached to their hate filled actions they may think twice before hitting the send button. These ubiquitous messages of hate are not only clear cut verbal assaults they can be early warning signs from disturbed criminals-in-waiting.

Must we wait until they explode in actual physical violence before the system allows them to be punished? Not fair.

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{ 8 comments… read them below or add one }

Diane Dimond June 8, 2015 at 12:38 pm

Facebook Friend Brent Hatley writes:

“This is what you get when you put people like Scalia and Alito on the court.”

Reply

Diane Dimond June 8, 2015 at 12:39 pm

Facebook Friend Valerie Kuhn writes:

” Most of the supreme court justices are crazy anyway.”

Reply

CLS June 8, 2015 at 3:07 pm

People with a fondness for cyberstalking and making violent online threats, must regard Anthony Elonis as their hero. What a horrifying free reign those types of people have been given.

Reply

Diane Dimond June 11, 2015 at 3:35 pm

Twitter Pal stretmediq writes:

“@DiDimond What could possibly constitute intent if not saying what you intend?”

Reply

Diane Dimond June 11, 2015 at 3:36 pm

Noozhawk Reader MongCon writes:

“Ms. Diamond, your thoughts on the saga of Nadine Dorries, a British MP who, using the bully pulpit of the tabloids has loudly proclaimed herself the victim of a cyberstalker and continued that narrative well after the police investigated and found that her claims were baseless. My point being that while it is important to address genuine threats delivered in cyber fashion, it is also important that we not create a knee jerk reaction which serves the purposes of those like Ms. Dorries whose use of “cyberstalker” was an effort to squelch legitimate public speech and criticism of her as a public figure. Perhaps the first question that needs to be asked is whether the “victim” is a public figure. While Elonis’s ex is not a public figure, there is danger in an article like yours that asks ” Must we wait until they explode in actual physical violence before the system allows them to be punished?” because a balance must be struck between free speech/intent and the primacy of personal safety and comfort. http://www.telegraph.co.uk/new….”

Reply

Lisa June 14, 2015 at 12:47 am

Except if you threaten law enforcement.
I am all for freedom of speech but not hate speech and threats.
Disagreeing is not hate speech either.
You all should stop over Ms. Dimond’s Twitter and see the hate and threats & death threats she endures daily, all over Michael Jackson.. Ugh.
They don’t realize there was something wrong with their “hero” .

Reply

Diane Dimond July 6, 2015 at 9:23 pm

Rockland County Times (NY) reader Bob Wilson writes:

“Diane:

I read your column “Cyber Stalking Just Got Harder to Punish” (10 June 2015) in The Rockland Times.
http://www.rocklandtimes.com/2015/06/10/cyber-stalking-just-got-harder-to-punish/

It’s good that you made readers aware of Elonis v. U.S., and I was disappointed by the lack of clarity in the decision of Chief Justice Roberts as you surely were, but I had a few questions about the column since I think more context should have been given.

“What if you got a message on your Facebook account from someone you knew was angry with you that read, “There’s one way to love ya, but a thousand ways to kill ya.” You might be a bit worried, right?”

But Elonis’s repulsive message was not sent to Elonis’s estranged wife as your line suggests. It was posted on his own Facebook account, an extremely important detail. If it was sent directly to his wife, the message is clearly a true threat. You suggest Elonis sent his message directly to her. Whether it’s posted on one or the other is bad enough, but there is a difference, and again, with that hypothetical you suggest Elonis posted it on his wife’s account.

“Well, thanks to a new ruling from the U.S. Supreme Court, there may be no grounds to arrest someone who writes such terrifying threats.”

But the point was determining the legal standard to be used. The idea that courts would abandon all standards is simply not realistic, as you surely know. Roberts writes that merely using the negligence standard is insufficient, and he unfortunately writes that the “Court declines to address whether a mental state of recklessness would also suffice.” The Court punts the issue back for the lower courts to work out, but there’s no way the Court (especially a moderately conservative judge like Roberts) is going to say “Anything goes.” Your sentence above suggests such.

“including this most memorable one as I was covering a controversial criminal trial: ‘My friend and I will push you down outside the court. While she scrubs your face with steel wool, I will scoop out your eyes with a spoon.’ … The L.A. Cyber Crimes Unit got involved once, the FBI on another occasion. Both ultimately told me there was nothing they could do to make the intimidating writers stop.”

Because the Unit and FBI were unable to trace the repugnant anonymous person’s IEP to arrest him/her? Or, as you suggest, the Unit and FBI simply shrugged its shoulders despite these criminal threats? It’s horrendous that you had to endure such incredibly vile comments, but your line suggests that the FBI could do nothing even if the person’s identity were known.

I hope you can comment on my questions.

I look forward to more of your columns on legal issues.

Thanks,
Bob Wilson

Reply

Diane Dimond July 6, 2015 at 9:32 pm

Mr. Wilson,
Thanks so much for writing. In a 700 word column it is difficult to touch on every legal issue raised in a U.S. Supreme Court decision. I try my best to give readers an overview – a perspective, if you will – about how high court rulings might affect them personally.
In the case of Mr. Elonis – in court, he openly admitted his animosity toward his ex-wife, giving various excuses for his threats – from the idea that he was simply regurgitating rap-song lyrics to the claim that he was stressed and sad about their break-up. Since it was made abundantly clear in court that the target of his taunts/threats was his ex-wife I omitted the fact that his vile words were on his own Facebook page and not that of his wife. I should have made that clearer.
On my own situation: The FBI knew full well who was writing threats to me (following my many scoops in the pedophile investigation against entertainer Michael Jackson – circa 1994-2015) and they visited some of the worst perpetrators. But back then it was common practice to shrug shoulders and proclaim that “Freedom of Speech” trumped all.
Thanks again for writing. I appreciate all comments – and post most – unless, of course, they are threatening to scoop my eyes out with a spoon!
~ DD

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