Specializing in the representation of crime victims, women and children.

As Schilling, others have noted, sexual threats are not free speech

By Wendy Murphy    Mar. 10, 2015


Originally posted in the Boston Globe on 3/9/15

Curt Schilling responded to trolls who posted vicious comments online about his daughter.

Curt Schilling responded to trolls who posted vicious comments online about his daughter.

CURT SCHILLING’S vigilante-style response to sexually violent cyber threats against his college-bound daughter Gabby was an appropriate response to a problem too often met with shrugs of “it’s only words.”

Vigilantism is never a good idea, but Schilling’s angry reaction is the kind of “canary in a coal mine” evidence that policy makers should worry about, because it indicates that something is gravely wrong with our cultural and legal response to violence against women. Indeed, as Schilling and others have noted, there are rarely consequences for verbal harassment and threatened violence against women.

Public officials often say they want to take action against such threats but that their hands are tied by the First Amendment, which protects even the most hateful speech in order to preserve core principles of a free democracy. But the line on free speech ends where other rights begin, including the right to be free from sexual harassment and the right to walk around in society without fear of being sexually violated with a baseball bat. Where the line is drawn can be affected by context, and the line can shift along with ideas and emerging technologies that affect the impact of words on society.

For example, words that reach only a few people may be less threatening than the dissemination of those very same words to millions of people reading them in an online chat room dedicated to social activism.

Apart from activist websites, social media readily provides remarks made to single individuals as fuel to crowd-sourced cyber-gang activity that bears down hard on real human beings. The 2010 suicide death of high school student Phoebe Prince was preceded by relentless verbal and written sex-based torture in cyberspace that made Prince’s real-world life intolerable.

Technology has moved the line on cyber threats, and though the idea of government-imposed restraints on speech may seem anathema in a free society, restraints can be liberating in certain circumstances. For example, laws against racial harassment, defamation, and yelling “fire” in a crowded theater, though restrictive, protect important competing values.

Moving the needle on free speech does not mean redefining what a threat is, it simply means expanding enforcement, including especially the political will to file criminal charges in threats cases. Other underutilized options include the steps taken against two of the men who attacked Gabby Schilling. One was fired from his job with the Yankees and another was immediately suspended from his university. (His immediate school suspension belies the nonsensical claim of law professors from Harvard and Penn who have insisted that perpetrators of brutal sexual violence on campus are entitled to “due process,” including a right to counsel and cross-examination, before suspension. If a student accused of an actual sexual attack were truly entitled to lots of due process before suspension, a student could hardly have been instantly suspended from college for only talking about it.)

Effective legal redress also includes civil lawsuits for torts such as infliction of emotional distress, intrusion upon seclusion, and civil rights violations when the threats interfere with a victim’s equal access to education. Federal oversight agencies have ruled that schools have jurisdiction to punish students who make threats in cyberspace, even if they aren’t created “on campus,” because where the harm lands is more important than where the words are created.

But by far the most blunt legal instrument would be the criminal prosecution of individuals who make sexual threats, because criminal sanctions include serious fines and incarceration. Proving the crime of “criminal threats” requires evidence that the threat was intentional, but it need not be imminent, and the victim does not have to be the direct recipient of the threat, or even know the identity of the person who made it. It is enough that the victim “reasonably fears” the threat could be carried out at some point in the future. With some studies showing that one in four women will be sexually assaulted in college, Gabby Schilling’s fear of being sexually victimized is reasonable even without a specific threat.

To be sure, effective enforcement of laws against sexually threatening speech will have a chilling effect on the willingness of individuals to talk about their plans to rape women. That’s the whole point. Creating a chilling effect on speech is only a bad idea if we believe men need the “freedom” to threaten women with the sexually violent use of baseball bats.

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