Threats or Art?

The Supreme Court's recent decision in not a victory for free's a victory for bullies

Volume 115, No. 9September, 2015

Jennifer Hoult

I agree with fellow attorney Harvey Mars’ message that it is important that the law distinguish between art and criminal speech. However, as a professional musician, attorney, former NYC prosecutor and licensed rape crisis/trauma counselor with decades of experience handling cases involving sexual and domestic violence, harassment and stalking, I disagree with Harvey’s legal analysis that certain speech by Anthony Douglas Elonis and the rap artist Eminem should be legally protected as “art.” (See Harvey’s articles in the April 2015 and July/August 2015 issues of Allegro.)

American law, including the First Amendment and various statutes, does not protect threatening speech. N.Y. Penal Code §240.26(3), for example, deems it crime to “engage[ ] in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.” Art, like political speech, is a recognized as a “legitimate purpose.”

The question is: When is a threat “art” and when it is a criminal act?

Stalkers, bullies, domestic violence perpetrators, sex offenders and terrorists often use threats as a weapon to terrorize their victims. These criminals gain sadistic pleasure from tormenting their victims by making them live in fear. Publication on social media and the Internet adds to the thrill of bullying, terrorizing and humiliating victims before an international audience. Sometimes after one person instigates the published attack, members of the public join in and create a feeding-frenzy atmosphere where the victim finds himself or herself attacked by many people in an international public forum. The effect on victims is often devastating.

Anthony Douglas Elonis was enraged at his ex-wife, who left him “and took the kids.” He published threats to murder her, along with specific details about her home and its environs, and how he could best effect his attack.

The rapper Eminem publicly threatened to “punch Lana Del Rey right in the face twice, like Ray Rice in broad daylight in the plain sight of the elevator surveillance/’Til her head is banging on the railing, then celebrate with the Ravens.” (Search YouTube for “Ray Rice elevator” to see the act of violence he threatened to mimic.) Eminem previously pled guilty to a criminal offense after being criminally charged for using a gun to assault a man he saw kissing his estranged wife. So he is both an artist and a convicted criminal.

Would you be “alarmed” or “seriously annoyed” if a man who had a violent criminal history personally threatened to knock you unconscious à la Ray Rice? Or if your ex-spouse published a threat to kill you in your home, along with your home address, and a description of how to circumvent your home security system to commit the attack? Might you find it hard to sleep at night knowing that everyone on the Internet had been provided with a blueprint for breaking into your home?

If these men’s words were “art,” what artistic statements were they making?

Were you ever threatened or taunted by a schoolyard bully, colleague, lover, neighbor or spouse? Did their threats alarm or seriously annoy you? Do ISIS videos threatening to behead opponents and videos of actual beheadings annoy or alarm you? When the KKK burns a cross on a lawn do you consider it to be political speech or art – or a terroristic threat? Do you think snuff films are “art”?

The law expresses our collective view about the society we want to live in and share. The question is: do you want to live in a society where a person who terrorizes you, or someone you care about, is legally protected because he calls his threats “art”? What kind of threats do you want the law to protect?

Consider: violence against women and children is the largest criminal violence epidemic in our society. Forty percent of women around the globe are victims of domestic violence. Twenty-five percent of American girls and 16 percent of American boys, are victims of sexual violence before they turn 18. As many as 50 percent of American women will be victims of sexual violence in their lifetimes. Crimes like cyber-bullying, and “revenge porn” are increasing. Each of us knows victims. They are your family members, neighbors, colleagues and friends. Having interviewed many men, women and child victims of these crimes, I can attest to the devastating harm caused when criminals use threats to force their victims to live in fear.

In my opinion, the Supreme Court’s Elonis decision created a “my threat is art” defense, seriously eroding legal protections for victims of harassment, menacing and stalking. Harvey calls the Elonis decision a victory for free speech. As a lawyer, I call it a victory for psychological terrorists.

As a professional artist, I believe the decision demeans the meaning of “art.” It appropriates a term that, for me, represents thousands of years of human endeavor to create beauty, inspiration, and powerful social critique, and transforms the word “art” into a defense for crimes of psychological terror.

The job for those who create and interpret the law is to decide where to draw the line. Consider where you think that line should be drawn.

Harvey Mars replies: I do not disagree with Ms. Hoult’s basic criticisms of my analysis of the results of the Elonis decision. However, I believe the decision was the correct one given the fact that the statute as initially interpreted excluded the essential “mens rea” (criminal intent) component of a criminal act. As applied, the statute only could serve to establish civil liability. However, it still remains to be seen whether or not Mr. Elonis will be reconvicted given the clarification rendered by the Supreme Court.