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Common Sense and Liberal Values Prevail in Twitter Harassment Case

But attacks on political speech in the guise of preventing "harassment" will no doubt continue.

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On January 22, a three-year legal drama that made few headlines but was closely watched by those with an interest in free-speech and online-harassment issues came to an end in a Toronto courtroom. Gregory Alan Elliott,* a 55-year-old graphic artist, was found not guilty of criminal harassment toward feminist activists Stephanie Guthrie and Heather Reilly. The trial judge took pains to stress that he felt the women were truthful and did feel harassed. But he also concluded that their perception of harassment was not reasonable, since it was based on the assumption that Elliott had no valid points to make or opinions to defend. 

Breitbart News columnist Allum Bokhari called the case's outcome the "Stalingrad" of the online speech wars, a key victory in the resistance to would-be censors and authoritarians. Vice columnist Sarah Ratchford deplored it as sending the message that "harassing women online is not a crime" and making the Internet "an even uglier place for Canadian women."

There is no question in my mind that the real issue in this case is the dangerous drift toward criminalizing political speech, often in the name of protecting women. Elliott's defenders may have oversimplified the facts at times—claiming that he was facing charges merely for disagreeing with feminists on Twitter. But here was a man with no criminal record facing six months in jail for tweets which, by the admission of the police officer handling the case, were neither threatening nor sexually harassing—and were part of mutual sniping. One of Elliott's offending comments, "Heather's fat ass gets fatter," was a response to Reilly urging other women to block him and using the hashtag #GAEhole.

Elliott and Guthrie first became acquainted in April 2012, when he volunteered to design a logo and poster, for free, for Guthrie's Women in Toronto Politics (WiTopoli) project. Elliott says he was genuinely enthusiastic about this at the time. The pair met for dinner and got along fine, but after some email discussions Guthrie told Elliott that her group had decided to go with another artist.

Guthrie later told the police that Elliott was "very angry" about this, but in fact, he sent her a friendly note which expressed the hope for future collaboration and signed it, "Love, Greg." (On the stand, Guthrie testified that she thought the email had a "seething undertone.") She also said she'd gotten a "creepy" vibe from Elliott when they met, particularly because of his repeated offers to give her a ride. Nonetheless, the two interacted amicably by email and on Twitter until July, when Elliott took issue with Guthrie's Twitter witch-hunt against another man.

That man was 24-year-old Ontario resident Bendilin Spurr, creator of an infamous online game in which players could virtually punch feminist videogame critic Anita Sarkeesian until her face looked bruised and bloodied. (Spurr had previously made a similar game targeting Jack Thompson, a conservative Christian crusader against videogame violence.) Having tracked down Spurr's Twitter account, Guthrie decided to, in her words, "sic the Internet on him." She not only publicly attacked him but tweeted information about his game to his local newspaper and sent out a general warning addressed to employers in Spurr's area.

Elliott objected to Guthrie's antics, suggesting that the retaliation was as repulsive as the face-punch game itself, and got embroiled in a heated Twitter argument with Guthrie and her supporters. After he tweeted that Guthrie's campaign was simply "revenge" which could conceivably drive Spurr to suicide, Guthrie replied, "I've had it with you" and blocked Elliott. Her friend and fellow activist Reilly later did the same.

Four months later, Elliott was under arrest for criminal harassment. His detractors say that during those months, he relentlessly hounded Guthrie and Reilly on Twitter to the point where they feared for their safety. He made derogatory remarks about them, posted in hashtags they frequented—making it likely they would see his tweets despite the block—and started his own hashtag, #FascistFeminists. Guthrie claimed that she started to feel he was obsessed with her and her work. Reilly said she became "concerned" about in-person stalking when Elliott tweeted a snide reference to them and their friends meeting at a Toronto pub ("A whole lot of ugly at the Cadillac Lounge tonight"), though the women had themselves tweeted about being at that location.

The defense, and Elliott's supporters, have countered that what happened was not harassment but a back-and-forth in which the alleged victims gave as at least as good as they got. Indeed, a look at the record recounted in Judge Brent Knazan's 85-page decision makes it difficult to conclude otherwise.  (Many materials from the case, including excerpts from the trial transcript and tweets entered into evidence, can also be found in an April 2015 defense brief available online, though the selection of those materials is obviously not unbiased.)

From July until November 2012, Elliott was repeatedly attacked and taunted by Guthrie, Reilly, and their supporters ("It was me against a hundred of them," he told me in an interview a few days after the verdict). He was reviled as an "MRA" (men's rights activist) who "disguises his feelings about women with a cloak of 'care' for their freedom." At one point, Guthrie tweeted her followers about a spoof account somebody had set up  to mock Elliott, whom she described as her "least favourite creep on Twitter."

Guthrie, Reilly and their friends also took to monitoring Elliott's timeline and "calling out" what they regarded as his sexual harassment of other women, mainly in exchanges with his own online friends. There is no question that Elliott, who is divorced, sometimes made rather awkward romantic overtures toward women with whom he interacted on Twitter. He also posted tweets with ribald overtones that were not directed to anyone specific, a part of his general eccentric online persona. (Elliott, whose graphic art consists primarily of stenciled texts, says he "would use Twitter as an experimental artist.") And he engaged in banter which, while often innocuous or mutually bawdy, at times crossed the line and made its recipients uncomfortable. On those occasions, Elliott promptly backed off and apologized. Yet Guthrie and her supporters portrayed him as not only a "creep" but practically a sexual predator who "hates women" and needed to be exposed.

Perhaps most egregiously, not long before Elliott's arrest, Reilly and another member of Guthrie's coterie whipped up a mini-storm of outrage around the claim that he had been "hitting on" and "creeping on" a 13-year-old girl. This was based on an exchange in which Elliott made a mild flirtatious remark to a female user who responded by angrily accusing him of being a pedophile and claiming she was 13. (She was later confirmed to be a young adult.) 

What's more, Guthrie and Reilly seemed to be of the opinion that Elliott essentially had no right to respond to their allegations. On cross-examination, Guthrie stated that Elliott was entitled to "defend himself to the world" but not to her; however, to her and Reilly, that right clearly did not include posting in "their" hashtags or reading and referencing their tweets. In Guthrie's view, Elliott was obligated to respect her demand to "stop smearing [her] work," but his demand to "stop libeling him" imposed no obligation on her because, in her mind, what she was doing wasn't libel.

The defense argued (fairly persuasively, in my view) that Guthrie and Reilly, at the very least, drastically exaggerated the degree to which they felt intimidated by Elliott's actions. Some of their statements, both at the time and later, suggest that they were annoyed rather than afraid. When another Twitter user, Globe and Mail columnist Denise Balkissoon, said that she would simply ignore Elliott, Guthrie replied:

It's what I'd like to do, but when he's attacking my work in feminism & women's safety it's hard to ignore. 🙁 

In her trial testimony, Reilly said that she didn't feel Elliott was "picking on [her] per se" but she "didn't appreciate … randomly being dragged into Twitter fights," or having Elliott's derogatory remarks about her posted in hashtags where a wide audience could see them. At times, the complainants contradicted themselves; thus, Reilly suggested that she changed her Twitter avatar from a photo of herself to a cartoon image because she was concerned about harassment from Elliott, but then admitted that she had changed it at some earlier point out of general concerns about being harassed.

"Ms. Guthrie's unreasonable premise that Mr. Elliott was irrational and had nothing valid to say meant that she never put his tweets into any context," wrote Judge Knazan. "The very fact of his tweeting any hashtag she followed or any tweet about her or with her handle harassed her. She would not even allow for the possibility that he had any reason apart from the obsession with her that [s]he perceived to tweet about her. Given that she had a leadership role in the campaign to denounce him, that is not reasonable." (Emphasis added)

Slate columnist Amanda Hess has lamented that Judge Knazan's ruling tells women they have no legal recourse against online harassers if they fight back by using ridicule and public shaming. But the line between attacking and fighting back can get fuzzy, on the Internet as in real life. It is notable, for instance, that Elliott did not attack or even mention Guthrie or Reilly on Twitter for over two months, from early September until mid-November 2012, except for one passing remark in a reply to another user. This truce was broken when Guthrie, Reilly and their friends decided to "call out" Elliott's alleged pedophilic advances to a minor. At that point, one could reasonably say that he was the one "fighting back"—which is certainly how he perceives the overall situation.

"I don't mind a good fight, but [if] I have a choice, how do I deal with it?" he says. "I would block, I would do what I could, I would ignore. But when you see your name come up and slanderous things, you have to respond." (Elliott also denies that he was obsessed with his online battles with the "fascist feminists," pointing out that his tweets to or about them made up less than 0.5 percent of his prolific overall tweeting.) 

Both Hess and Vice's Ratchford questioned Judge Knazan's knowledge and competence when it comes to the Internet and the social media—ironically citing as evidence an error in the prosecution's favor, namely the fact that the judge attributed to Elliott a nasty homophobic tweet that had been sent from the parody account. Hess even suggested that an Internet-savvy "smart teen" could have done a better job. But it's very doubtful that a smart teen would have been particularly sympathetic to an attempt to throw someone in jail over a Twitter war.

Ultimately, this is a case about political speech. As the defense brief put it, "A politician (Ms. Guthrie) who transmits her political opinions to the world on Twitter cannot reasonably be fearful when another politically engaged Twitter user (Mr. Elliott) comments on her politics on the same social media platform."

Elliott's son Clayton Elliott, 31, who has been actively involved in his father's defense, says that he believes Guthrie's real fear was "brand damage," her feminist activism being the "brand" in question. One might also say that her fear was losing control of the discourse in feminist spaces, where opinions such as Elliott's—for instance, that "blaming the majority of normal men for rape is wrong"—are seen as beyond the pale.

Thankfully, both common sense and liberal values have prevailed for now, and Elliott is a free (if broke) man. But attacks on political speech in the guise of preventing "harassment" will no doubt continue. According to Vice, Ontario MP Cheri DeNovo is considering introducing "a new bill to address online harassment of and verbal violence toward women." Otherwise, DeNovo says, "You can say whatever you will about whatever woman you want, it's just freedom of expression."

Actually, yes, unless what you say fits into the narrow category of libel or explicit or implied threats, you can say whatever you will about whatever woman or man you want. That a politician in a democracy would have a problem with that is something that should cause us all reasonable fear.

Disclosure: I participated in a livestream fundraiser for Elliott's defense fund last November.