Last week Jezebel successfully attracted attention by finding racist Twitter reactions to President Obama's reelection posted by high school students, tracking the students down, and outing them. Jezebel's follow-up follow-up suggests a classic trolling pattern — do something controversial (in this case, out minors for racism), collect outraged responses, mock the most extreme of the responses. At least one blog has since emerged collecting such outing of racist assholes.
There are two issues of culture, prudence, and ethics at hand. First, I have to ask whether Jezebel and its imitators are simply perpetuating the tiresome ploy of "identify a few Twitter idiots, emphasize them and imply they fairly represent the entire other side." That seems to be treading on Twichy's patch and stealing the bread from its dully gaping, moves-when-it-reads mouth. Second, while I generally think that adults who act like dicks don't have a right to be free from being viewed as dicks, I also think one could question whether it is just or proportional to out minors for dickish conduct. There are arguments on both sides; you could write a thoughtful post about it.
This isn't that post.
Instead, I want to turn to a related issue: invective about the President (or any other officials) and true threats. In the wake of the douchetastic reactions to the election highlighted by Jezebel and others, there's been talk — including from people who ought to know better — suggesting that certain rhetoric about President Obama has been criminal, and that people venting on Twitter should get visits from the Secret Service. I ranted a bit about this back in 2009. In short: true threats are criminal, but stupid violent rhetoric often is not criminal.
This proposition is not new. It's as old as I am. The only remaining dispute is whether the test for a true threat is objective or subjective, or both — in other words, whether the test is "the speaker must intend the threat to be taken seriously" or "a reasonable listener would take the threat seriously," or both. The Ninth Circuit recently discussed the distinction:
Two elements must be met for a statement to constitute an offense under 18 U.S.C. § 879(a)(3): objective and subjective.
The first is that the statement would be understood by people hearing or reading it in context as a serious expression of an
intent to kill or injure a major candidate for President. See Gordon, 974 F.2d at 1117. The second is that the defendant intended that the statement be understood as a threat. Id.
Ultimately whether one test or the other or both applies may depend on the particular threat statute at issue.
Under this test, not every discussion of violence towards the President is a "true threat"; some discussions are hyperbole protected by the First Amendment. Here's some examples of how the courts have come out:
Watts v. United States: The seminal case, from 1969. The defendant, speaking out against the draft, said "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." The Supreme Court held that this was not a true threat, given its political nature, the reaction of the listeners, and the expressly contingent nature of the threat.
United States v. Bagdasarian, quoted above: In 2011, the Ninth Circuit overturned a conviction for threatening President Obama. Bagdasarian had posted this sort of rhetoric to a Yahoo! Finance board, possibly trying to class up the joint: "Re: Obama fk the niggar, he will have a 50 cal in the head soon" and “shoot the nig country fkd for another 4 years+, what nig has done ANYTHING right? ? ? ? long term? ? ? ? never in history, except sambos.” The court found insufficient evidence of under both the objective and subjective tests, noting that the incoherent threats were on an internet bulletin board, and suggesting that made them less likely to be taken seriously.
United States v. Lincoln: The Ninth Circuit overturned another conviction for threatening a President, this time President Bush. The threat in question said:
President Goerge [sic] W Bush you think cause [sic] you go over There and Blow Them up that The killing will Stop in you [sic] Dream They got over 275,800 or more since, Never mind that this is only the Beging [sic] of the Badass war To come Just think Their army is over here already hiding They have more Posion gas Then [sic] you know. ha ha. Too bad you don't think Like Them. You will see a good Job Done agin [sic] may [sic] 2 week's, [sic] maybe 2 months, 3, who know's [sic]. You Will Die too George W Bush real Soon They Promissed [sic] That you would Long Live BIN LADEN.
The Court noted, among other things, that the threat suggested that other people, not the writer, would kill the President, and did not threaten to do anything himself in the message.
United States v. Fuller: The Third Circuit upheld the conviction of Fuller, an inmate who made a successful bid to remain in prison by sending a letter stating "I will be released soon! Me and my friends are going after all of Americas [sic] rulers! They will pay! Bush is first! He will die first! I will not have a president that is criminal in office! I will kill him myself!" The thrust of the opinion is that it doesn't matter whether the defendant intends to carry out the threat, or has the present ability to do so — the question is whether it's objectively viewed as a threat, given the objective test followed in that circuit.
United States v. Lockheart: The Fourth Circuit upheld a conviction for a letter that said "[i]f George Bush refuses to see the truth and uphold the Constitution I will personally put a bullet in his head."
In short, much of the stupid and racist venting on Twitter does not constitute a true threat. The statements that are, at least, closer to true threats are the ones in which the writer says they will personally harm the President, but even those are unlikely to be taken as true threats unless the context shows that a reasonable person would take the threat seriously, rather than as hyperbole (and in some jurisdictions, also that the person meant for it to be taken seriously). Few pass that test.
The Secret Service routinely investigates hyperbole that doesn't meet the true threats test. They do so because some of it might conceal actual bad intent. So long as they don't violate any provisions of the Constitution (for instance, by conducting improper searches, or by unlawful interrogation), there's nothing illegal about this. But if you are one of the people flooding the Secret Service with reports of assholes on Twitter being assholes on Twitter, you are eating up their limited time, and I have to ask you: are you really doing it because you think these people are threats, or are you doing it because you like doing whatever you can to lash out at racist assholes?
Last 5 posts by Ken White
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016