The exception to free speech for threats is "true threats". To prosecute a "true threat", the state must establish one or both of:
* The subjective test, of whether it was the speaker's intent to convince the object of the threat that they were in danger
* The objective test, of whether a reasonable disinterested observer would conclude that the speaker's language telegraphed an intent to actually commit harm.
Threatening to stuff a judge in a wood chipper on an Internet message board clears neither of these two hurdles. It's facially not a true threat. An attempt to investigate it as such is an abuse of prosecutorial power. Hence the uproar.
The internet is a weird place, to be sure, where the standards of what a reasonable person would take to be a true threat are ill defined. But the comments at issue here seem squarely in the vein of: "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." (the comment at issue in Watts v. United States, which held that political hyperbole is not a true threat).
I can see how a reasonable, disinterested person might read these comments either way. Specifically, some of the comments that were supposedly 'obviously' not threatening have to be taken in the context of the entire conversation in which they were made, and clearly some of the comments here are referring to a specific act against a specific person. How do you determine whether these comments 'definitively' telegraph intent? What is the criteria for determining that they definitely don't telegraph intent?
In the case of the "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." comment, you have to closely read the comment to determine that there is no actual intent here, because the entire statement is conditional on the 'If they ever make me carry a rifle..." portion of the sentence, which at the very least makes it not an immediate threat. In some of these comments, there is no such qualification, the presence of which would make it fairly obvious that in this case there is no credible threat.
These comments are not nearly as clear cut or objective as people are making it out to be since you can't determine from the specific language people are using that this is definitely not an immediate threat.
EDIT: A lot of people are modding me down without making a substantive counterargument. Using the text of the comments please highlight the portions that prove objectively that there is no threatening intention please.
You are either completely misunderstanding or misrepresenting the holding in Watts.
The reason the comment about L.B.J was protected was not because the "if X happens" language, but because even crude, hyperbolic political commentary is absolutely protected under US law.
> you can't determine from the specific language people are using that this is definitely not an immediate threat.
"Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."
It is literally right there in the decision, so in fact the conditional language is being considered.
> you can't determine from the specific language people are using that this is definitely not an immediate threat.
That's utterly irrelevant.
How is this utterly irrelevant? it seems to be the substance of the entire legal problem.
1) You keep talking about immediate threats. A true threat does not need to be immediate. You may be conflating this with the related doctrine on incitement. (Basically, speech meant to incite violence is protected unless the violence is imminent. "You should kill the governor this weekend" is basically 100% fine under US law. "You should kill the governor right now" might not be. Yes, US law is weird.)
2) You can't determine from any language that something is definitely not a true threat (or an immediate threat, as you persist on calling it). Language is malleable. My use of the word "malleable" could be a coded reference which means, to those in the know, that you should be hunted down and killed. I mean, it doesn't really sound like it is, but how can you determine that? The answer is that you don't need to. Speech that you "can't determine" isn't a true threat is still protected. It's only when speech rises to the level of being clearly intended to cause fear in the recipient that it might lose its protection. (Which is, incidentally, one of the larger reasons the speech was obviously protected: It wasn't made to the person allegedly being threatened. Comments about a person face a vastly higher bar than comments to a person. If the person who made the woodchipper comment had no reason to think the judge would ever see it, it couldn't have been a true threat.)
In short, the true threats exception is vastly narrower than you seem to think.
The comments are no mere winking references to Fargo so it's seems a little disingenuous to keep talking about the wood chipper. They're listed here, which I'm sure you've read:
I've no trouble being convinced that the way the government is attempting to investigate these comments is ham-handed and excessive.
I have a harder time getting outraged about someone's inalienable right to talk about shooting federal judges and then remain anonymous or avoid any government scrutiny. If you run around the internet saying such things, you are likely to attract government scrutiny and that scrutiny isn't somehow axiomatically unreasonable.
More than one US President has been shot by a random crazy person, and yet SCOTUS held in the landmark Watts case that an idle threat to shoot LBJ didn't qualify as a "true threat".
I don't think people should run around the Internet threatening to shoot people either, and I think threats to shoot people should be taken seriously. But "Its judges like these that should be taken out back and shot" isn't a serious threat; it is, in fact, a figure of speech.
Do you want to systematize the "reasonable person" reasoning here? What are all the factors you might consider in making the assessment? I'll start a list:
1. Lack of stated intent --- someone should be shot, not I am going to shoot.
2. Lack of specific planning or details anywhere in the comments. Someone should be shot tomorrow when they come to court at 8:30AM, vs. simply "someone should be shot".
3. The rhetorical-or-true threat is a single isolated comment from the commenter, not a pattern of comments from that person over time (people make sockpuppets, of course, but the mere act of diffusing a threat over a bunch of sockpuppets argues against it being a true threat).
4. The "threat" echoes a previous comment on the same forum, as in "no, don't shoot the person out back, do it out front so everyone can see" or "no, don't use a gun, use a wood chipper".
5. Obviously: extravagant and silly modes of violence, like wood chippers, or dropping anvils on heads.
6. Jocular tone, or even, really, any non-deliberative non-serious non-specific tone in a comment that shares a forum with previous silly suggestions.
You could flunk all these tests and still not come anywhere near a "true threat", but I'd argue that opening a formal investigation and collecting evidence and issuing subpoenas for comments that flunk any of them is abusive. And so in this case, on the Reason comment threads, there was a complete absence of specifics or even of stated intent. Being happy about the idea of someone being shot makes you an asshole, but it doesn't make you a criminal.
I think the context and outcome matter. Watts made his statement literally on the public square, during discussion after a political rally and the context of his remarks was the draft (in a highly controversial war) and racial inequality. It doesn't get more 'statement of political dissent' than that. What happened to him was unquestionably outrageous and a gross violation of his civil liberties - he was reported by an agent of the Army Counterintelligence Corps who was present(!!) and then charged and convicted.
How well does this case compare? Some asshats on a fringe forum mouthed off about murdering a judge because they didn't like the judge's verdict. I'd bet that then some other, similarly judgement-impaired indivdual reported them to the authorities. What follows is predictable - said authorities, ever paranoid of being accused of having failed to 'connect the dots', put the gears in motion resulting in silly subpoenas, some dickish behaviour by a federal prosecutor and a publication's inability to talk about the investigation for two weeks. Potentially, some imprudent ranters might get to chat with an FBI agent of which nothing will come.
I'm not trying to argue this is somehow an awesome outcome or that it doesn't, once again, highlight some worrisome problems with the power of prosecutors and its potential for abuse. But I just don't see the outrageous abuse of civil liberties, chilling effect, etc the tone of all of popehat's writing on the topic implies.
I don't think it's unreasonable to recognize the problem law enforcement, investigators, procecutors face in such situations - while zillions of internet hyperventilators fill message boards with their threatening but ultimately harmless nonsense, so do the microscopic minority who actually turn out to be violent. Is this incentive to over-react exacerbated by imbalances in prosecutorial power, other systemic issues? Sure. Does this case represent some outrageous assault on civil liberties? Is it entirely trivial to identify 'true' threats on internet message boards by applying a well-reasoned list of bulleted criteria? I'm not convinced of either of those things, at least, not yet.
Ken at Popehat isn't simply angry because a prosecutor is investigating clearly hyperbolic comments on a message board. He's angry because the prosecutor needlessly (and, as it turned out, pointlessly) imposed a gag order on Reason.
The investigation itself was dumb and, I think, a bit abusive. The gag order though was clearly abusive.
If that's abuse "how can you take the abuse you get on a sit?" Ok, I'll take his expert word that the gag order was plainly abusive.
Watts speaking at the Washington monument vs Watts saying something similar at an underground Panthers meeting where everyone is armed to the teeth - trivial distinction to make. Idiot talks shit on the internet? I don't think it's trivial to make the distinction. In fact, that's the exact ambiguity anonymous internet jerks rely on to try to intimidate, say, women whose views they don't like.
But, in the interests of brevity, I'm willing to concede the possibility I'm the proverbial frog blissfully swimming in the cauldron of an imminently boiling police state, suitably seasoned with a generous helping of obviously untrue threats.
>I've no trouble being convinced that the way the government is attempting to investigate these comments is ham-handed and excessive.
>I have a harder time getting outraged about someone's inalienable right to talk about shooting federal judges and then remain anonymous or avoid any government scrutiny.
The reason we should push back on these kinds of investigations is federal agencies sometimes proceed knowing full well the subject isn't doing anything illegal, but they can make someone miserable just through the normal investigative process. The process itself is the punishment they intend to mete out to people who say things they don't like.
The downvotes demonstrate that the community has decided it's so obvious that these aren't threats that it's not even worth explaining. We on the Internet are viewing these comments through the prism of our own experience viewing other online comments, and that experience causes us to "just know" that they aren't threats. "just knowing" is an argument that wouldn't stand up in court, though. Nothing in law is obvious
http://popehat.com/2013/10/07/meant-to-be-threatening-or-rea...
The exception to free speech for threats is "true threats". To prosecute a "true threat", the state must establish one or both of:
* The subjective test, of whether it was the speaker's intent to convince the object of the threat that they were in danger
* The objective test, of whether a reasonable disinterested observer would conclude that the speaker's language telegraphed an intent to actually commit harm.
Threatening to stuff a judge in a wood chipper on an Internet message board clears neither of these two hurdles. It's facially not a true threat. An attempt to investigate it as such is an abuse of prosecutorial power. Hence the uproar.