The Supreme Court just made the Web even more hostile for women

A smartphone user shows the Facebook application on his phone. (Dado Ruvic/Reuters)

You have to mean it before it's a crime.

So said the Supreme Court in a ruling this week about online threats of violence. The opinion reverses a lower court's conviction of a man who fantasized on Facebook about killing his ex-wife. That may ease the fear many of us have about inadvertently putting something on the Internet that gets misconstrued. But the finding is a major setback for those trying to make the Web a less hateful and hostile place, particularly for women.

Women are subject to tremendous amounts of harassment online. It's on Periscope. It's on blogs. It has forced some women to flee their homes. It's unfair, pervasive and seemingly unstoppable, though not for lack of trying. Entire teams of people — the New Republic once called them Deciders — now help tech companies police hateful speech with a mix of human oversight and computer algorithms.

If the Supreme Court had ruled the other way, it wouldn't have necessarily eased the burden on these folks. But it might have offered them, the perpetrators and the victims of hate speech a bit more guidance. The case's outcome instead places even greater responsibility on tech companies to figure out strong harassment policies on their own, and on the people who write and struggle to enforce them judiciously, often on a case-by-case basis.

The thought of being punished severely for a bit of digital indiscretion naturally inspires a bit of fear. Nobody wants to lose their job because they tweeted something carelessly. Nor should everyone necessarily be penalized for an ill-advised party photo. It could happen to any of us. So to hear that even the most extreme cases (such as Anthony Elonis's) can get a pass under the law might come as a relief.

Elonis couldn't be convicted merely because his former spouse felt endangered by his violent comments, the Surpreme Court ruled. Instead, a jury would have had to find that Elonis meant what he said about slitting his ex-wife's throat, smothering her with a pillow and hiding the body to be taken as a threat.

"Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of 'awareness of some wrongdoing,' " Chief Justice John G. Roberts Jr. wrote for the majority opinion.

This may be a really good thing for online speech, at least in the abstract. Most people probably agree that there should be as few restrictions on speech as possible on the Internet, the better to promote innovation and expression. In this case, "I didn't mean it" can literally be your get-out-of-jail-free card. That's about as forgiving as you can get, and no small measure of affirmation for those of us who are prone to putting our feet in our mouths.

But that reassurance comes at a cost. It puts murderous talk in a safe zone so long as the perpetrator isn't being serious. It forces juries to meet a higher legal standard in judging suspects, because the harm done to the victim is valued less than the aggressor's mental state, which can be more difficult to ascertain.

It also risks putting recipients of a threat under even more intense pressure. Having to evaluate the seriousness of a death or rape threat is a central part of the emotional stress of being threatened. Not knowing whether it's real simply heightens the fear.

To require that victims be convinced of a genuine threat and to prove they're not imagining it is an impossible ask. It's basically a request for mind-reading, for threat recipients to get inside their terrorizers' heads. This might not be a problem if, as a rule, everyone on the Internet treated one another like decent human beings and nobody ever maligned anyone. But that is not the Internet we know. Our Internet is often filled with hostility, harassment and bigotry. And the fact that many of its users — particularly women — are regularly forced to deal with it should give us pause before we celebrate too loudly our newly upheld freedom to make threats against them.

In his partly dissenting opinion, Justice Samuel A. Alito Jr. seemed to sense the injustice of the legal presumption.

"Whether or not the person making a threat intends to cause harm, the damage is the same," he wrote.