Actually, rape threats to 5-year-olds aren't protected speech

Jul 28, 2016 at 5:59 p.m. ET
Image: Carlina Teteris/Getty Images

Jessica Valenti, prominent feminist writer, has decided to take a hiatus from social media following rape and death threats she received about her 5-year-old. Valenti announced her decision on Twitter yesterday and unsurprisingly some users immediately responded by arguing that the rape threats to her 5-year-old daughter are protected under the First Amendment.

That's right, there are people out there in the Twitterverse who actually think that rape and death threats to a 5-year-old child are protected speech. But they aren't... and here's why:

The First Amendment does not protect all types of speech! Most people actually know this. It's why we're able to have laws against things like defamation of character and false advertising. And it's why we can't yell "fire" in a crowded theater.

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But other than those common examples, the First Amendment also does not protect a person's right to threaten people, especially not when they're threatening to rape and murder a 5-year-old.

According to the First Amendment Center, there are nine categories of speech that are not protected under the First Amendment. One of the categories listed is "true threats."

So, what is a "true threat"?

A "true threat" can basically be defined as a threat that a reasonable person would believe is likely to be a serious threat to inflict harm.

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The way the courts interpret this varies since what a "reasonable person" might deem as threatening isn't at all objective. But I don't know a single parent who wouldn't take even the vaguest threat to kill or rape their young child seriously. It's our job as parents to protect our children. We're supposed to take threats to their safety seriously. And I think Valenti's harasser knows this. It's why they threatened her daughter and not her.

Further, as explained by Garrett Epps in the Atlantic back in 2014, "true threat" doesn’t mean that the person issuing the threat actually intends to carry the threat out, but only that the person intended their words to be threatening.

So, it doesn't even matter whether or not you think the person who sent these threats is really going to rape and murder Valenti's 5-year-old. The fact is we don't know whether they plan to or not. And that's what makes it scary. They could really intend to do this. You, I and Valenti don't know for certain that this person isn't coming for her daughter as I write this.

But what does matter is that the threat was made with the intent to scare Valenti.

And I believe it was. I've been thinking about this all morning and honestly cannot come up with a single reason a person would threaten to kill and rape a person's child except to scare them.

Sure, some people will argue that it was just a joke; they always argue that it was just a joke. They'll say that the feminists just need to lighten up and start laughing, not only about being raped themselves but also about the people they love, care about and are responsible for being raped, tortured and murdered. They'll say this, but they won't mean it. They don't really want us to laugh because if we did the joke would no longer be funny to them.

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So, while the all the sexist trolls who have harassed Valenti in the past might be laughing it up, it was never intended to be funny to her. No reasonable person would think a parent would find the rape and murder of their own child funny. If it was meant as a joke, the joke was that Valenti was scared it. And if her fear is what makes it funny then the intent of the harasser was still to scare her. And that's all that matters.

So, no, threatening to rape and murder a 5-year-old is not, and never will be, protected speech.