The First Amendment Protects Satire And Rhetoric! lol j/k

A nineteen-year-old has been jailed since March 27, 2013. He's been beaten — by other inmates, allegedly. He's been subjected to solitary confinement, sometimes stripped naked. The authorities have rejected calls for his release on a reasonable bail his family could possibly afford. All of this has happened because he wrote something online that concerned or offended or enraged the state.

What's that? Syria? Saudi Arabia?

No. Texas.

The nineteen-year-old is Justin Carter. Carter, like many Americans his age (or mine, for that matter) plays online games and indulges in the exaggerated trash-talk common to that culture. In the course of an argument involving the game League of Legends, he got into a dispute with another player, who called him crazy or "messed up in the head." That is a rather mild epithet coming from an online gamer; it's nothing like Carter might have gotten if, for instance, he'd had the bad taste to Game While Female.

Carter reacted the way many do in online gaming culture: with overblown rhetoric. Riffing of the idea he was crazy, he wrote: ""I think Ima shoot up a kindergarten / And watch the blood of the innocent rain down/ And eat the beating heart of one of them." Carter's family says that he immediately followed that post with "lol" and "j/k," further demonstrating — as if further demonstration was necessary — that the words were satirical bluster, not a threat anyone rational would take seriously.

But not everyone is rational. A woman in Canada — the land where freedom of expression is subservient to fee-fees — saw the post, used Google to find Justin Carter's contact information, and reported his "threat" to local police. Local police and prosecutors obtained search and arrest warrants — thoughtfully provided here at Ars Technica — and arrested Carter, eventually charging him with felony "terroristic threats."

Police and prosecutors maintain that Carter's "threat" should be taken seriously. They dispute his and his family's assertion that he followed his post with "lol" and "j/k." In evaluating the credibility of the police and prosecutors, consider this: in the affidavits seeking search and arrest warrants, they completely stripped Justin's "I think Ima shoot up a kindergarten" post of any context whatsoever, deliberately excising all mention of the online dispute, the connection to gaming, or his other posts. In short, in seeking a judge's authorization to arrest Carter and search his home, police and prosecutors made it appear to the judge that he had simply woken up one day and posted that on Facebook. That was breathtakingly deceitful.

The search of Justin Carter's home yielded no weapons and no evidence of dangerousness.

But District Judge Jack Robison has set Justin Carter's bail at half a million dollars. His family can't afford that. He has been beaten by other inmates — a common experience for younger, weaker defendants confined pre-trial — and confined naked in solitary, allegedly over suicide concerns.

Prosecutors sought and obtained an indictment against Justin Carter for a third-degree felony "terroristic threats" under Texas Penal Code section 22.07. To prove that charge, prosecutors will have to prove beyond a reasonable doubt that Justin Carter had "the specific intent to place any person in fear of imminent serious bodily injury." District Attorney Jennifer Tharp is determined to pursue that theory, despite the context that makes it patently ridiculous.

Whose fault is this? My fault. Your fault. Our fault.

New Braunfels Police Lt. John Wells invokes the magic word:

The Comal County District Attorney's office hasn't responded to our calls, but police in New Braunfels, Texas, who have investigated the case, say in a time of heightened sensitivity to school shootings, their interest is in preventing violence when they can.

"The whole situation is kind of unfortunate," said New Braunfels Police Lt. John Wells. "We definitely understand the situation that Mr. Carter is in, however he made the comments, and it is an offense. We have to … protect the general public and specifically, in this case, with it involving schoolchildren, we have to act. We take those very seriously."

The magic word is "children."

We have fully and foolishly subscribed to the "Think of the Children!" culture. In an era in which violent crime has plunged dramatically, we think it is up. We think so because the media — hungry for money and attention — serves us bloody context-free meat every night. We think so because law enforcement — hungry for more funding, more power, more toys — relentlessly tells us we are in danger and that our children are in danger and that the only answer is to trust and fear. We are bid to trust not ourselves and our good judgment, but law enforcement. We are bid to fear not the power of the state, but the criminal forces arrayed against us and our children — forces that only law enforcement can hold at bay.

We accept this.

But who poses more of a risk to us, and to our children: the Justin Carters of the world, or the state that will file dishonest and misleading warrant applications against him, the state that will confine him to be beaten and stripped naked in a cell, the state that will confine him for a crass joke?

The state tells us that Justin Carter or Cameron D'Ambrosio are threats, and that we must trust the state's special powers to see danger behind teen bluster and dipshititude, and trust the state's choice to employ force against them. Is that rational? Carter and D'Amrosio haven't used force wantonly or recklessly or against children. The state has. The state actors we are supposed to trust have. The state, not D'Ambrosio or Carter, tase a naked autistic 11-year-old wandering confused on a roadside. The state, not Carter or D'Ambrosio, smother a man with Downs Syndrome to death for trying to watch Zero Dark Thirty twice. The state, not Carter or D'Ambrosio, will beat, tase, and pepper-spray your child when they mistake his speech impediment for "disrespect." The state, not Carter or D'Ambrosio, will tase your 86-year-old bedridden grandmother because she may pose a threat from her bed. The state, not Carter or D'Ambrosio, will arrest you for videotaping in public and then harass and threaten you for talking to the media about it. Violence against animals is often identified as a tell of pathological violence and dangerousness; the state, not Carter or D'Ambrosio, mow down dogs like Autumn wheat. The state, not Carter or D'Ambrosio, will confront you in the street if your child is the wrong skin color and bark at you when you don't grovel thankfully. If you criticize Carter or D'Ambrosio, they will subject you to trash-talk; if you criticize state actors, they will put up wanted posters of you or send police to knock on your door in the middle of the night or serve you with a search warrant. The state, not Carter or D'Ambrosio, thinks that concern for Constitutional rights is evidence of criminality. The state — through judges and prosecutors — lets armed state agents indulge in this behavior with impunity.

Lt. John Wells, defending the prosecution of Justin Carter, tells us that we need to act, that we need to take threats seriously, that we need to protect the general public, that we need to protect schoolchildren. I agree.

But if we are rational — if we look at evidence — then who represents more of a threat to us and our children? Is it Justin Carter's community, or John Wells' community?

I think my children and I are more at risk from the state than from Justin Carter — particularly because I choose to criticize the state.

If you care about this story, you can look at the petition Justin Carter's family has put up, or write to the officials named above. Be very careful what you write. This is America, I suppose, but still — be very careful what you write. I'd feel guilty if you were arrested, confined on half a million dollars bail, beaten, and locked naked in a cell. You know — for the children.

Let me leave you with a question.

The moral justification of the state to use violence against Justin Carter — to arrest him by force, to search his home by force, to confine him with people who (predictably, as his captors expected) beat him, to set an impossibly high bail to prevent his release, and to lock him naked in a cell because their acts may have made him contemplate suicide, all on a transparently weak and unconstitutional charge — is generally assumed and rarely questioned.

But if I were to ask "is it morally justified to use violence against the state actors who did that to Justin Carter?" — that would be seen as extremist, disturbing, dangerous.


What's more dangerous — their conduct, or my question?

No lol. No j/k.

Edited to add: An anonymous donor has helped the family make bail. Excellent.

Edited Again To Add: Jack Marshall has a good idea for a protest: quote Justin Carter on social media on August 1.

Last 5 posts by Ken White


  1. Trent says

    Does Carter have pro-bono defense counsel? I believe this is a supreme over reach by the authorities and Justin should have qualified first amendment defense including if applicable a civil suit against the authorities.

  2. Grifter says

    What's odd to me is that we've yet to see screen grabs from his defenders. I'm sure this is an egregious overstep, but we've just descriptions of the words; I haven't found a source that actually SHOWS us the words, in the context they were presented. I am also curious why this spilled over onto Facebook; is that game a facebook game? I don't believe it is, though I haven't played it myself.

    If not, isn't it then unreasonable for someone reading his comment to know the context? (in which case it wouldn't be dishonest to show it divorced from context).

    My lack of faith in the government's ability to govern itself accordingly means that I lean Carter's way, and am assuming that this is, indeed, ridiculous and stupid and a miscarriage of justice. However, I want to see more of the actual details. (And of course the bond and his treatment have been ridiculous, but that's pretty obvious to anyone).

  3. Vauthil says

    (Hi, long-time lurker here. Thanks for posting about this one.)

    Yes, even in the so-called "best case scenario", even if the stars are aligned and this guy gets let out, even if by some miraculous chance he is permitted to vigorously pursue his rights and gets a nice big payout (haha, yeah right), he's already lost. And no matter who "wins" this in court, we've all lost by virtue of it having even gone this far in the first place.

    And all the well-dressed well-fed and never prison-manhandled bureaucrats who made this possible will go home at night and sleep well, knowing they did it "for the children". They might even have already given themselves congratulatory backpats for it. And then they'll just keep on doing it. It's for our own good, after all.

    In a system where payouts for malfeaseance come from the public coffers and where the Inquisition enjoys immunity from real consequence for their inquisitorial ways, where's the incentive for them to stop and consider what they're doing? Maybe once upon a time it came from public excoriation, but in this era of 24/7 news and 45 second attention spans is that really going to cut it anymore?

    But now we approach the question you asked. And it's a dangerous one to ask. After all, as we've learned already, the Inquisition is watching. For your good and their own.

  4. JP says

    Texas new motto is becoming "THINK OF THE CHILDREN…*"

    *"…when designing the next prison."

  5. AlphaCentauri says

    Doctors-in-training tend to practice procedures on each other or sign up to be victims experimental subjects in clinical studies, in part to have some first-hand experience of the tests and procedures they will be inflicting on their patients. Maybe prosecutors, judges and police officers should experience some time in maximum security prison before assuming their duties.

  6. jilocain says

    Actually it's worse than that.

    If you've get the chance, check out a recent Techdirt article on the subject ( )

    It appears that a D.C. Police Officer Christopher Picciano wrote threats against Ms Obama, a specific person, about going on a killing spree, about climbing up a tall building with a rifle. He was 'just joking' of course.

    Here's a man who could possibly do what he joked about, he's in DC, he has access to weapons, and he's presumably been trained in using them.

    What do you think happened to him? Jail, beaten, $500,000 bail, nah. Suspended without pay for about a month.

    Surreptitious and widespread surveillance, check.
    Secret courts and secret laws, check.
    Wildly overzealous application and prosecution, check.
    Different laws for different classes, check.
    Indeterminate detention and torture, check.

    Hmmm, I don't want to sound like some tin foil wearing nut, but just how are we different than, I don't know; Soviet Russia, Communist China, Cold war East Germany, North Korea? Just about every messed up country throughout history?

    As far as I can tell, it's just that most of the citizens here haven't caught on to that fact yet.

    How Carter's being treated unfortunately isn't an abnormality, it's just another sign of the disease.

  7. Kevin says

    But wait a second here… If I recall correctly the discussion from the discrimination thread, I thought it had been established that state authority is NOT backed by violence, that that's just something wacky right wing extremists believe! I thought we had all agreed that state authority is actually backed by the "social contract" or "will of the people" or something like that…. definitely NOT violence… right?

    So clearly these stories must all be fabricated.

  8. Conster says

    "is it morally justified to use violence against the state actors who did that to Justin Carter?"
    I'll put this as diplomatically as I can in this situation: Justin Carter no more deserves to be put in jail than the people who put him there deserve to have their jaws and hands broken for doing so. Fortunately, I live in Europe and have no passport, so there is 0 chance of me posing a danger to any of them.

  9. says

    Violence, you say? Reminds of those old GI Joe PSA's that left out the teeth of the argument. They'd always end in "and knowing is half the battle". Well, sure, but the other half of the battle is violence. It's a battle, after all.

    All seriousness aside, I had mixed feelings when I saw the headline here this morning. I've been following it in other sources, including Masnick's analysis of the cop. I suspected Ken's opinion and further research would elevate it way up above the current general despair level to the point of actual real fear. It did.

    As someone whose personal history almost certainly earns a big "analyze this guy by hand" flag at the NSA, the last several months of hot government-on-citizen action have left me feeling a bit less than safe or free. I just hope they don't shoot my dog when they come after my encrypted volumes or World of Tanks game client reversing notes.

  10. Vauthil says

    Grifter, it was following a League of Legends (LoL) match. Not a Facebook game at all, but it's essentially replaced Counter-Strike as the most raving maniacal den of filthy language and bad manners. Regular lurid imprecations on the sexual proclivities and competence of your maternal unit are the norm rather than the exception. If mere villainous language counts as villainy, Mos Eisley has nothing on that game's community.

    The context may have mattered for the reporter's end if we're being charitable (as to why it spilled over to Facebook, I don't know that it amazes anybody that the norm approaches in blurring the lines between all our online community shoeboxes, but speaking personally I don't compartmentalize them that well and often "cross the streams" such that half or more of my friends list doesn't get the context). But given the bounds of investigative authority, prosecutorial discretion, and magisterial oversight already applied, does that excuse all that happened following it? I'm going to opine with a "hell no".

    The best explanation (I can't really call it an excuse) I can offer is that career bureaucrats (which I'll, for the purposes of this discussion, assume the Forces of Inquisition at work here are since the odds are in my favor here) are generally technophobic. After all, efficient new technologies might replace the need for the bureaucrats themselves. Even so, apparently not a single person in this process thus far apparently knows or has thought about:
    – What "lol j/k" means.
    – How to use Google to find out.
    – How to critically think enough to go "er duh nothing shows he has the means to commit this maybe we should back off".
    – How to critically think enough to go "er duh hyperbolic nerdrage is hyperbolic nerdrage" (Like the Hyperbolic Time Chamber, hyperbolic nerdrage enhances your superpowers, if by superpowers you mean "olfactory and verbal offensiveness").

    But it's all a-okay. We're followin' procedure here, nothing to see, you can trust us because it's by the book. Bureaucracy 101.

  11. Kevin says

    @Michael Donnelly: Protip: If you want to stay safe from the police, just be sure to carry a puppy with you at all times to offer as a blood sacrifice to appease the LEO gods in the event of any trouble.

  12. ZarroTsu says

    At what age does a "child" stop being a "child"? If the acts of the individual are childish, such as the above, are they considered a "child"? Is it considered unlikely or blasphemous to assume a "child" could off their own race, and as such they are to be tried as an "adult" for their allegations?

    If a child of the age of ten or so made the same facebook post and was also called upon by a heart-condition-addled (Which I say as an assumption, since most women I've met, being Canadian myself, aren't fucking retarded) Canadian woman, would they too be prosecuted, or would charges be dropped because they, as a "child", would infringe upon our "morals" to defend "children"? If the child then proceeded to follow-through with his ignored threats, how then would the prosecutors and media react?

    I'd personally only consider someone an adult if they're relied upon by others for support, whether morally or financially (or both). These would require maturity and (usually) not being a screaming idiot.

    It's evident that, so long as it's in defense of people's morally stupid interests, most people would disagree with this idea.

  13. Grifter says


    The point, though, is that without a direct reference to the reason for the joke, a casual observer wouldn't know it was referring to the game.

    It would be like if I got into an argument at drunk baseball and someone called me crazy, so I put up a sign on my house saying "Yup, I'm crazy, gonna [do a bad thing]". Even if the authorities discovered the whole context, wouldn't their point here be (regardless of its validity), that the people who SAW this didn't know the context, and felt threatened?

  14. En Passant says

    Conster wrote Jul 11, 2013 @10:07 am:

    Fortunately, I live in Europe and have no passport, so there is 0 chance of me posing a danger to any of them.

    Nope. Factual impossibility is no defense. Only legal impossibility is a defense. And Texas might have an applicable long-arm statute to extradite you.

    You should specify the jaw and hand breaking to be contingent upon their criminal conviction for aggravated first degree asshattery with intent to lollygag.

  15. says

    An inability to understand obvious contextual cues is a sign of mental illness, and could indicate a person is a danger to themselves and others, as the saying goes. The unnamed Canadian woman (whom I hope will be named, shamed, and sued to death), the judge, and the cop all ought to be held for observation for 72 hours, just in case.

    You know. For the sake of the children.

    When I started my kickstarter a bit over a month ago (done and funded now, yay!), I got spam from the usual bottom-feeding subhuman wretches that prowl the internet, who would "help me get lots of likes" for the low, low, cost of just about the total I was asking for in the first place. I posted something to the effect of "I wish someone would KS an app that would let me reach through the screen, grab these pieces of filth, drag them partially out of the screen, and then smash their heads over and over into my desk until bits of brain goo and blood went flying everywhere."

    Should the cops have been called? I mean, to prevent me using a nonexistent app to perform physics-defying murders?

    I also threatened, just last week, to invent a time machine so that I could go back in time and kill Alexander Graham Bell (right after Hitler — got to kill Hitler first, it's the law. At least, shove him in a closet.). Should the cops have been called on that one, too? It's unlikely I might invent a time machine, but given the damage I could do to the entire universe if I managed, surely, better safe than sorry, right?

    (For those wondering why: I hate phone calls. The damn phone rang SEVEN TIMES that day. I had work to do, and every time I got "in the zone", the phone rang. No, I can't turn off the ringer, because my wife and her mother live with me, and the calls are usually for them.)

  16. JW says

    Whose fault is this? My fault. Your fault. Our fault.

    I'll accept fault insomuch as I haven't *taken a FLAMETHROWER to this place.* I'll accept a small amount of fault, in that I don't do more than agitate on forums with like-minded people any longer. I've grown tired of the statist mentality and their inability to see over that very tall box they've placed themselves in. I've lost the desire to try to teach pigs to sing.

    I wasn't always this way. In my youth, I was loud, opinionated and never shied away from an argument. I'd take any fight that came my way. But, not any more. I don't even talk politics with people any longer. I just don't care enough to do so. The status-quo made this smoking turd of a system and they can deal with the consequences.

    I'm fucking tired. I'm tired of the stale and shallow thinking from the majority of people who are fat and happy with their 1" deep perspective of the system, lacking any real insight, who won't brook any criticism of the state or its actions or encouraging private action over public without them reducing the ideas to a simple Manichean proposition of "if you don't want the state to do it, then you must not want it."

    Those people I used to argue with still harbor the same beliefs 25 years later. Maybe that was my failure to make persuasive arguments or just the natural urge for people to cement in common beliefs and refuse uncomfortable introspection. They're still Marxists, socialists and conservatives, only older. Although, one Marxist did finally admit to me recently that I was right 25 years ago, in that feeling any sympathy for the Nazis in Das Boot was the wrong reaction.

    OK, so maybe I made a little difference.

  17. Vauthil says

    Point taken Grifter, but isn't this why Facebook has the "Reply" and "Send Message" buttons? Are we now so infantile and deprived of social faculties as to be unable to talk to people before calling the authorities? Is it in fact that difficult to go "um, what?" or "honey, maybe you should consider nixing that post because people might misunderstand".

    An example I once presented when discussing a related topic with some forum admins: a former co-worker of mine once confided on Facebook that her head was pounding and she was just like to take a gun to her own head and shoot herself to end the pain.

    Is the correct response in that situation then:
    1) Panic, call the police and say that so-and-so is threatening imminent self-harm (which, by the way, pro-tip: calling the police is about the worst thing you can do if you're actually worried about a real suicide attempt, police don't have any training on it and generally make it worse in the long term if not the short)
    2) Reply to co-worker's post and go "c'mon, take a and it'll be better in a few hours"
    3) Send a Private Message and go "Um, maybe you wanna dial down the histrionics since your kids can read this?"

    If #1 is what occurs to you to do first, congratulations, you're in lockstep with that pearl-clutcher.

  18. S.BEAM says

    Next time I'm playing an online game and recieve a death threat, I'm going to report them as a threat to the local police. lol j/k

  19. Erroll-Flynn says

    "But wait a second here… If I recall correctly the discussion from the discrimination thread, I thought it had been established that state authority is NOT backed by violence, that that's just something wacky right wing extremists believe!"

    That wasn't our position and you know it. That's a straw man, and you've made it answer a different question from what was being discussed there.

  20. Matthew says

    I honestly cannot understand how this young man is still in jail, and how these charges still stand. Even if you take an incredibly narrow view of the First Amendment, it would seem this speech is clearly protected.

    As an online gamer myself, these comments seem rather tame, and no reasonable person would ever be put in fear over comments made in a game like LoL. Hell, it is part of the culture there to just say the most ridiculous, offensive shit possible once you start to lose (I am more familiar with MOBAs other than LoL).

  21. Quiet Lurcker says

    @Grifter –

    I don't think it matters. The statute under which this young man was charged, calls for the person being accused of 1) making a threat with 2) the intention of causing another person (in this case an official of some sort) to act or not act in a certain way, because that official was afraid of something happening, in such way that it 3) interferes with the operation of some facility, activity, what-have-you. [I'm reciting the basics, there's far more refined language, to which I invite your attention.] By implication, the information would have to be specific (including an act, a place, or a time at the very least), and to get to the attention of someone in position to take notice and do something about it. This young fellow was posting on an open forum on the internet. There was nothing specific in what he posted; in fact, it looks (at least to me) like the lyrics of a rap or heavy metal song. It unless he knew or at least suspected there were people in authority who would see it, the information was not going to someone who could act on it.

    How, then does his activity fall under the criminal statute?

  22. says

    I honestly cannot understand how this young man is still in jail, and how these charges still stand. Even if you take an incredibly narrow view of the First Amendment, it would seem this speech is clearly protected.

    My speculation: They (the judge, the arresting officers) probably knew they were screwed shortly after the arrest. The instant the charges were dismissed, everyone involved would be sued so hard you'd need a time machine to file all the relevant paperwork. (They can borrow mine once I'm done with AG Bell.) So they are keeping the kid in jail until the parents are desperate enough to agree to not file such a lawsuit. In essence, I believe they are holding him hostage to cover their own asses. The other explanation — that they genuinely believe he's a threat — requires a degree of stupidity so extreme it's hard to imagine they have enough neurons to walk and breathe at the same time.

    When the lawsuit comes, I suspect we'll see the cops try to charge the Canadian twit with "misrepresenting" the case to the police, if that's even a thing, and if there's laws in America that reach into the frozen North, or otherwise try to say "We were misinformed by that evil Canadian! Sue her, not us!"

  23. says

    One of the many things that enrages me about government is the blind eye it turns to prison rape.

    Here's hoping that the kid hasn't been raped one or more times, and hasn't caught HIV or some other bug.

    Let's remember that there's no such thing as "the government" – there are just individuals who commit actions and claim that they do it with the blessing of their invisible sky-father "the state".

    To which I reply:


  24. says


    They (the judge, the arresting officers) probably knew they were screwed shortly after the arrest. The instant the charges were dismissed, everyone involved would be sued so hard

    They've all got immunity.

    And even if they didn't, it so hard to win against the government that one really shouldn't even bother.

  25. perlhaqr says

    Yeah, Kevin. That wasn't what they said. They agreed that state authority was backed with violence. They just don't think it's relevant to the discussion.

  26. says

    This makes me pretty concerned, as I live in Texas, do a lot of online gaming and social networking, and have an extremely warped sense of humor.

  27. says

    If online game trash-talk is a threat at the beyond-the-screen remove of a net forum, how then should the general conduct of a real-time, meatspace activity involving crudity and similar trash-talk-for-fun be considered? I'm particularly thinking of games of "Cards Against Humanity" here.

  28. Grifter says


    Oh, I agree. I'm just saying that's their logic, which is why the context isn't as important as some are making it out, though I wish we had screencaps.

    "Some guy on a game just called me crazy. Yeah, I'm real crazy, ima [do bad thing], lol."
    "I'm crazy, ima [do bad thing]"

    @Quiet Lurcker:

    I'm not defending their overall actions. Just the contextual bit. It does, indeed, seem absurd for them to pursue this, overall.

  29. says

    @Clark: They have personal immunity, but it still looks bad, I hope, if they can be pointed to as the cause of a huge settlement that defunds the local playground or something. And if the local Judge is elected, "Don't re-elect Judge Doofus, he cost us 50 million bucks!" ought to be a decent campaign slogan.

    Though, your point about the difficulty of suing Uncle Sam using the Uncle Sam Brand Legal System, A Wholly Owned Subsidiary Of Uncle Sam, is quite well taken.

  30. Kevin says

    @perlhaqr: it's possible I may have been engaging in a bit of hyperbolic exaggeration. Sue me. The point still stands.

    They basically acknowledged that state authority is technically backed by violence, but only in a very abstract, theoretical way, which virtually NEVER actually comes into play in real life, and is therefore just a distraction which should be factored out of the ethical analysis of government action. The kinds of cases mentioned in this post pretty much put the lie to that assertion.

  31. machintelligence says

    The other explanation — that they genuinely believe he's a threat — requires a degree of stupidity so extreme it's hard to imagine they have enough neurons to walk and breathe at the same time.

    The neurons involved with breathing and walking are not the same ones used for higher cognitive functions. And remember we are talking about Texas bureaucrats and elected officials here…

  32. lelnet says

    My fault. Your fault. Our fault.

    Only to the extent that we haven't yet actively done anything to stop it.

    The part of "we" that is Ken White, criminal defense attorney, is emphatically not to blame for this. The part that's Ken White, civil liberties activist, even less so.

    I bear more blame than you do, I suppose, because I've done way less than you have. But unfortunately, most of the folks that'll be reached here are already more or less on our side. It's the ones who think that invoking "for the children" ends the argument that are the real problem.

  33. En Passant says

    Now that an anonymous donor has contributed bail to Mr. Carter, how about some more anonymous donors to fund an ongoing local publicity campaign?

    A few full page ads in local papers, and spots on local radio and TV could simply state the facts of the case, name the officials responsible, and urge people to remember this at election time. Then run them frequently, right up to the next election.

    That would be money well spent. Of course the jackass officials responsible for this outrage would probably also arrest and charge the advertisement funders for "terrorist threats". Official butthurt is like that.

  34. Personanongrata says

    For leveraging the full coercive power of the state in order to destroy the life a young manyDistrict Judge Jack Robison, District Attorney Jennifer Tharp and New Braunfels Police Lt. John Wells (etal) are awarded the title(s) of:

    Cretinous turd stains on the underpants of humanity.

  35. a_random_guy says

    I am really glad to see that this case made Popehat. I don't know if this is a case of (a) deliberate prosecutorial overreach or (b) utter cluelessness. It doesn't matter. The authorities have attacked a family and a clearly innocent young man.

    This case leaves me almost speechless – there is so much wrong with it, and nothing at all right. To name a few, in no particular order:

    – Even if the police the prosecutor are this stupid, surely a judge should be held to higher standards?

    "He made the comments, and it is an offense" First amendment. Even without context there is no credible threat here.

    – Why is violence tolerated in jails? If this teen were beaten on the street, he could press charges. Why do the authorities casually look the other way when it happens in jail?

    – On the subject of violence: Since the authorities do tolerate it, why are they not criminally liable?

    – Where are the hungry lawyers? If there was ever a slam-dunk case for a lucrative civil suit, this is surely it.

    – Why does this happen in Texas? That's my state, damn it, I expect better.

    Lastly, to answer Ken's final question: It depends who you ask. When the government officials fail their duties this egregiously, I would consider vigilante justice entirely justified. Prosecution thereof should fail to jury nullification.

    Unfortunately, the world we live in has become too timid. Texas parents ought to be up in arms – armed as Texans are – and setting things right with a raid on the jail. Instead, most are entirely unaware of this case, and the others are just glad that it isn't their kid…yet…

  36. ZarroTsu says

    Remember kiddies, nobody will remember the government treatment or half-million bail. They'll remember that a kid on facebook said something stupid and got arrested.

    And at least 50% who remember it will ruin his life for it. Because they are stupid, stupid people.

  37. perlhaqr says

    Kevin: You have mistaken my dry tone as actual chiding. I assure you, it was the position that "the violence inherent in the system" is irrelevant to the discussion is what I was taking umbrage with, not your comment calling them out. Or perhaps I have mistaken you simply returning my dry tone. :D

    Ironically, this is actually the sort of situation in which I would consider coercive violence of appropriate resort. Were the threat real, using violence to prevent a massacre at a school would be wholly correct.

  38. perlhaqr says

    Luke G: Chilling effects. They work. I actually am too afraid to participate in that.

  39. says

    "Personal Immunity" is rater part of the problem I think. People who _can_ act with impunity _will_ act without consideration.

    That's a corollary of the power corrupts thing.

    Now, should one or all persons involved in the complaint, particularly the overly projective Theoretical Canadian Girlfriend™, all get together and try to determine which of them can most effectively remove their own head with a chainsaw; well I don't think we will be losing any great minds or fonts of reason and compassion in the exercise.

    In a rational world, anybody with the right to act under professional discretion should live under threat of culpability for their actions.

    I have a clearance of non-trivial grade. Every time I enter or leave a large number of circumstances, or engage in public speech, I am changing my exposure to criminal and civil penalties in accordance with the power and trust afforded me by the DOJ and each of several entities. My actual power to affect things and people is quite low and indirect.

    Why in the world should someone who can ruin lives with the stroke of a pen be shielded from the fallout of their own actions? It's ludicrous.

  40. Kevin says

    @perlhaqr: Ah, well, I wish I could claim to be that clever, but actually your "dry tone" went completely over my head on the first reading. Oops.

  41. Quiet Lurcker says

    @Grifter –

    I'm confused here, I must admit.

    If the law states that someone *has to* intend to cause disruption/fear/etc. (A person commits and offense…with intent to [emphasis mine] … accessed 7/11/13 @1630 hrs cdt), then doesn't it matter when, where, how, and to whom the 'threat' was communicated?

  42. Erroll-Flynn says

    @Kevin and @perlhaqr:
    If you think my position embraces abuses of state power then you've seriously misread my argument. In fact I specifically lamented in one post the over-eagerness of agents of the state to resort to force. No where did I sanction such actions.

    The possibility of over-eager, stupid, callous, vicious enforcement by cops is separate from the policy they were attempting to enforce. That's an endemic problem in America that needs its own remedy.

    So I probably separate out issues into nice, neat compartments too much for your tastes, but if any discussion with you about anything, ever, ultimately descends into discussions about crappy cops and police brutality, I can say I agree with you on the brutality issue and that its not worth attempting to discuss anything else, full stop.

  43. Lucas says

    Salon has very interesting excerpts from the book ""Rise of the Warrior Cop: The Militarization of America's Police Forces".

  44. Matthew says

    @Lizard This isn't the kind of law I practice, but I was under the impression that pretty much everyone (the DA, police, etc.) would all have some form of immunity which could only be pierced by a showing of bad faith or something like that (an impossible hurdle).

    So pretty much this kid is fucked. He has already spent time in jail, which has supposedly destabilized him emotionally and/or mentally, his Google footprint will highlight this event for employers/etc. for all of eternity, and when he wins this case, he will probably owe lots of money in legal fees. While I am confident a public defender could handle getting this dismissed on 1A grounds, personally I would opt for 1A counsel.

    So life ruined and no recourse. I like how justice works here. Makes my plan of working for about 3-4 more years and then never coming back sound a whole lot better each and every day that goes by.

  45. Grifter says

    @Quiet Lurcker:

    The "initial" conversation happened on an entirely different forum. If you called me crazy HERE, and I went on facebook and raved craziness, that I claim it's linked may be certainly a compelling defense. As I think it is in this case.

    But, if they've decided to arrest him for it, I don't think it's dishonest to divorce it from a context that hasn't been actually established as linked yet.

    Everyone's taking this story at face value…but what I've seen so far is: a complaint that doesn't include the game information, and assertions from the father that there IS this contextual link as well as an in-Facebook tag to indicate the joke. Everything seems based on the father's description of words and events that the state is disagreeing with, which is why I keep bemoaning the lack of screengrabs, which could make this crystal clear.

  46. Grifter says

    That said, 22.01 doesn't have the "intent" bit, only the "threaten" bit, so there may be a significant difference there, but the Prosecution wanted it treated as terrorism instead of regular ol' assaultive threat. Again, not defending the overall prosecution, just the supposed divorce from context.

  47. Anonymous says

    I'm not sure whether I found the kid's plight more disturbing or the bootlicking at Ars Technica. I suppose ultimately it's the latter, because that permissiveness and celebration of government power is what leads to cases like this. But I guess that's what you get from a young, liberal, government-loving crowd.

  48. Trent says


    Putting "lol, j/k" at the end of the message is all the context needed. Anyone that would press charges with that statement on the end (especially after a search warrant revealed no weapons, plans or history of violence or mental illness) is without conscience or is mentally ill themselves. Sarcasm and humor (even in bad taste) are not terrorist threats and you have to be brain dead to think they are when the author himself said he was laughing and just kidding.

    They MIGHT have had cause to investigate without the "lol j/k", but with it on the end of the message it should have never went past the initial review of the complaint. There is someone gunning for publicity of tough on crime, a vendetta or sheer stupidity involved here on the part of the authorities.

  49. Trent says

    But I guess that's what you get from a young, liberal, government-loving crowd.

    In my experience it's the older conservative folks that prefer the over use and abuse of police and prosecution powers, not the progressive young folks. But don't let me get in the way of your echo chamber and it reinforcing your view that the world is black and white.

  50. jim says

    I think the answer to your question is no. based on what you presented (and reading through some of the links) it's hard for me to believe Justin posed a believable threat to hurt anyone. If it's true that he did not present a serious threat, and the comments you quote from Lt. John Wells indicate he probably didn't think so either, then the police and the judge should be held accountable for Justin's treatment.

  51. barry says

    A few years ago president Reagan announced to the world; "My fellow Americans, I'm pleased to tell you today that I've signed legislation that will outlaw Russia forever. We begin bombing in five minutes."

    While in some places, threatening to bomb Russia and starting WW3 might not produce the same moral outrage as threatening to shoot up a kindergarten, we are still luckily that it was seen as a joke (especially by Russia). And Reagan did no jailtime for it.

  52. Sami says

    Whoever that "anonymous good Samaritan" is, I salute them.

    That was a stupid thing for the kid to post, but there is a difference between "stupid" and "actionable". Since it was reported to police they have to do something, sure, but a more appropriate response would be to just tell the kid, "Hey, son, sometimes people get worked up about that, probably best you not joke about it, okay? Because seriously, we have actual work to do."

  53. says

    This is extremely disturbing. League of Legends is notorious for its fierce rhetoric, threats, insults, etc. Nobody takes it seriously. There is no reason to put this kid through so much abuse just to "teach him a lesson."

  54. machintelligence says

    There is someone gunning for publicity of tough on crime, a vendetta or sheer stupidity involved here on the part of the authorities.

    Texas judges are elected officials. Need I say more?

  55. Conster says

    En Passant: I meant fortunately for them, not fortunately for me.

    Lizard: Or a cupboard. A cupboard works too.

  56. says

    In a slightly related case, a nutjob who thinks Taylor Swift is Satan was arrested on charges, from what I can tell, of being Extremely Silly.( The thing that's interesting, and by "interesting", I mean, "Who gave this asshat a law degree, and can we take it from him and beat him with it?", is this quote:"“My advice is don’t say anything on the internet you wouldn’t say in front of a police officer, a judge, a prosecutor or your mother,” Shrager said."

    Or, in other words, this "lawyer" is saying the First Amendment — you know, from the Constitution, the basis of all legitimate law in America — is meaningless, and that you had better not say anything that anyone, anywhere, might interpret the wrong way, or you'll be in trouble, and that's just how it is.

    (Based on the very limited information in the article, it sounds like the person charged may have been much closer to the line than Justin Carter, who never got within a dozen metaphorical miles of the line, but for a lawyer to say "You ain't go no free speech rights on no Internet!" seems to veer quite close to professional incompetence.

  57. darius404 says

    I find it interesting that this case gets so much attention, yet a case almost identical to this one, in which the teenager is actually being sentenced to federal prison, fades into obscurity:

    Josh Pillault was arrested last October for threatening to kill people and destroy buildings. At the time of his arrest, he was 19-years-old, and an avid video game player.

    ….Another player began antagonizing him, and eventually told him to kill himself.

    Irritated, Pillault said he would kill not just himself, but also take out the local high school. He also mentioned Columbine — the name of an infamous school shooting — according to reports.

    It was the response that the other player had been hoping for, according to Pillault’s mother.

    “His gleeful last words to Josh were ‘Knock, knock!’ which is a reference to the feds he sent our way,” wrote Stacey Pillault in an email to TheDC News Foundation.
    Josh was adamant about maintaining his innocence, but the family eventually decided that the odds of a conviction were simply too high. On June 20, Josh plead guilty, hoping for a lighter sentence. He is now awaiting transfer to a federal prison, where medical experts will evaluate his mental condition. Sentencing should take place a few months from now. Josh could get 10 years in prison, and a fine of $250,000.

  58. Quet Lurcker says

    @Grifter –

    I still put it to you that context is significant, because it reflects a part of intent.

    In line with what @Trent said, allow me to pose what I hope will be viewed as a socratic question, or more appropriately a series of socratic questions.

    Who specifically did the young man threaten. He said 'kindergartners'. OK. WHICH kindergartners?

    He was going to kill them. HOW?

    WHEN was he going to do this?

    To WHAT PERSON in officialdom did he communicate this threat?

    What SPECIFIC RESPONSE was this young man attempting to elicit?

    The law under which he stands charged requires that the charging authority be able to answer these questions. If there are no answers to those questions (especially that last), then I put it to you that the there was no *intent* and therefore no crime.

  59. Grifter says


    The "lol J/K" is disputed, and no screencaps have established it. Again, we have only the father's word. If that was appended to the end of the post, I agree, removing it was dishonest.

    @Quet Lurcker

    (You'r doing that to your name on purpose, aren't you! First the transposed ck, now the dropped I…you just want me to mess it up…)

    My point was just that the game context is merely asserted by the father. It's not dishonest not to include it if the police don't buy that the context is relevant. If they left off the end of the actual message, that's something else entirely, but the comments made on another forum completely MAY or MAY NOT be relevant. We may as well claim it's dishonest for the cops to not include an alibi they don't believe when they get a warrant for murder.

    Further, I'm (for the umpteenth time) NOT DEFENDING THE CASE OVERALL. JUST THE CONTEXT PART, and even then only weakly, and only based on a lack of information.

  60. Geruk Griy says

    Cases like this make me consider offing myself. At least that way I know I'll go out on my own terms, rather than waiting for government thugs to throw me in a pit to rot.

  61. a_random_guy says

    I take Grifter's point: "I keep bemoaning the lack of screengrabs, which could make this crystal clear". It is rather odd, given the claims, that the family hasn't published a screenshot. IANAL, but I cannot see how publishing this sort of objective proof could hurt their case.

    Regarding the other teen, who has taken a plea deal: Yes, it's sick, just as sick as this case. This guy and his family played the lottery and won first prize of going viral. The other teen took a plea deal (pleas are a foul excrescence on the face of the legal system), giving the prosecutor an easy win, and droping him off the radar of current news. It's not right, and perhaps he can profit somehow from of the outrage about the current case.

  62. Vauthil says

    I have one for you to consider on the screencap issue: the assumption that the parents or even his counsel (especially his prior court-appointed counsel) are easily capable of such is simply off the mark. My dear mother, bless her heart, can recite landlord-tenant at me in her sleep and give me chapter and verse on evictions and unlawful detainers. But she couldn't screenshot and share one of my Facebook statuses without me there to press buttons for her, she's just all thumbs when it comes to that sort of thing (I just finally got her to stop using Google to search for Facebook every time she wanted to log in). That's even assuming the parents have Facebook accounts and have access to his posts, too, and that Facebook hasn't instituted some "magic quarantine" in this case already (I'm not familiar enough with Facebook's policy on such stuff to comment).

    That said, given the apparent lack of corroborative physical evidence (no guns, no journals outlining fantasies for gunning down schools, not even a bloody copy of the Anarchist's Cookbook), even going by the contents as provided in the warrants I'm not convinced they have more than "son, don't say stupid !@#$ online" wristslap fodder. Not that it matters, because in this system breakdown the players are eager to double down pursuing political ambitions and perverse incentives.

    Here's what we're looking at when I say "system breakdown". We have:
    – A dumbass 18 year old (at the time) making dumbass facetious commentary online. In other words, your typical 18 year old gamer.
    – A pearl-clutching imbecile who opted to call a "tip line" rather than actually spend five seconds hitting "Reply" or "Send Message" to clarify any context. Oh yes, did I mention given the policy of said tip line she probably got some amount of cash when the arrest was made? Yeah, that happens.
    – A tip line that merrily hands out money to people for arrests and for whom this was just another arrest metric to display on their web site.
    – A regional task force looking to justify the millions of local and federal dollars spent on it by making sure every time an opportunity for a possible feather in its cap could possibly be scrounged, they should scoop it up. Welcome to the world of federal grants and the magic word "terrorism" used to obtain them.
    – An ambitious Lieutenant who is proudly preening that he's saving the world. Guess what, folks, Lieutenants by and large are your archetypical paperwork-pushing donut-devourers. "Look at me, I justified the task force's and my own existence. I'll make (insert appropriate promotion grade for his organization) in no time with a few more of these." is why he's on top of this instead of a lesser officer. Rule of thumb I learned in a decade playing aforementioned grants system and pushing products to these guys to spend that money on: Once you get past Sergeant it's 95% politics and 5% law enforcement.
    – A Chief Civil Prosector/Criminal District Attorney eyeing political prospects whose wheelhouse is "saving the chillunz". Her whole damn biography is all about how she saves the children. Apparently once you turn 18 you're useless to her, though. Let's also look at all the organizations she's involved with: "She is a Co-Founder of Comal Cops for Kids Foundation and a Board Member of Upstarts. Jennifer is active with the Teen Court Task Committee, the Comal County Bar Association, the Sherriff’s Citizen Academy, Leadership New Braunfels, the Children’s Advocacy Center for Comal County, and C.A.S.A, (Court Appointed Special Advocates)." Yeah, that's somebody who might be totally critical of police overreach. Oh wait, she also fully supports drawing blood in every single case across the board if you refuse a breathalyzer and lists that policy as a crowning achievement? Nevermind.
    – A gung-ho hanging judge already on record for being reprimanded for attempting to imprison a man for contempt for 30 days because, in the restroom and not in the courtroom, the man angrily approached and called him a fool. Oh yeah, he's also a former cop too and is cited as thinking opening a drug court is an awesome idea. How many wagons can we circle here? "$250,000? That's chump change! HALF A MILLION DOLLARS!" I wonder if he keeps a hairless cat in the courtroom to pet when he does this.
    – A prison system that takes for granted that the people it is supposed to be overseeing will get molested in every sense of the word. And when it's exposed, the assailed is whisked away and, in an already broken state of mind, subjected to psychological trauma to match the physical. Of course, the prison industry lives on these stories, since it's accompanied by the familiar and constant sucking sound of asking for more funding that will prevent this except for the part where it's never enough.

    All those steps along the way, and nobody could be bothered to show a shred of humanity towards the dolt. That's because everybody down the chain of custody here benefits from this soul-sucking aberration of an arrest, prosecution, and imprisonment. Thankfully somebody has posted bail.

    I hope some truly large legal cannons come to bear in this case. I hope the case goes bye-bye down the flusher (whether in a spectacular flareout or a silent poof). I hope the dolt gets some remuneration for the inhuman treatment he's received (sadly it'll be at the taxpayer expense and not at the expense of the system) and that he also has learned to know his audience at the least. I hope that the $500,000 goes back to its donor and the donor then decides instead to put it towards dismantling DA Jennifer Tharp and Judge Jack Robison so that they are so politically toxic that Westboro Baptist will refuse to associate with them. I hope that on the floor of the Senate and the House that when grant legislation renewal time comes along specific clauses are injected into the language banning federal funding to this specific task force so that they receive the Congressional recognition they crave and deserve.

    One can dream, at least. Alas, that's probably only happening in the parallel bizarro universe where I've acquired the psionic ability to make public figures projectile vomit and flatulate every time they get behind a podium and indulge in their babble.

  63. AlphaCentauri says

    This case is getting a lot of attention. But there are a lot of other young people locked up every day who are supposedly presumed innocent and can't make bail, so they are in jail for lengths of time that any of us would consider appropriate to a sentence for a conviction. Lots of them are really mistaken identity/stolen identity victims, lots of them aren't really the perpetrator but are keeping quiet about what they know to protect the real perpetrator, and lots more are guilty but are guilty of crimes that shouldn't be handled with imprisonment in the first place. They probably don't have a constitutional rights angle to their charges that would attract pro bono counsel, and they probably don't have parents who can get the story out to the media. This case is outrageous, but we shouldn't lose sight of the fact that it isn't all that unusual.

  64. Myk says

    So if I understand correctly, and excuse the gross oversimplification, this is about "intent to cause fear", right? How far do you think Sherrif Numbnuts and his merry band would get if we (meaning you good American/Texan folks) start phoning in "threats" every time there's wrestling on in that good State? The trash-talk is "intended to cause fear" and the 'rasslers are certainly both ready and able to deliver on their promises, unlike this poor kid.

    I'd pay to watch Gumby and his crew trying to arrest a bunch of wrestlers and WWE fans.

  65. Quiet Lurcker says

    @Grifter –

    Any typos are a result of fat-finger syndrome, nothing more. Therefore, no intent, no purpose behind the typos.

    That they excluded the info about the 'lol j/k' could *could* mind you, be grounds for the court hammering on the prosecutor during/before trial. At the federal level, at least, there's a rule that the prosecution has to turn over any exculpatory evidence (anything that would show the defendant didn't do whatever he/she is being tried for) to the defense. I haven't looked, but I would not be surprised to learn there is an equivalent rule in Texas; my own reading into the subject suggests that state rules frequently, but not always, follow the federal model.

    That said, and *if* there is such a rule, then the cops probably were faced with at least an expectation, if not an absolute responsibility to include that information in the report (please ask an actual lawyer about the implication of that rule for how the cops go about their jobs – I could well be wrong), the prosecutor to the judge, etc.

    Again, under this rule, *if* it exists, if the cops reported it, then the prosecutor had a duty – she HAD TO turn it over at least to the defense, and the defense would have been idiots not to use it in court.

    If the cops/prosecutor *didn't* turn it over, and the defense found out about it, then they could ask the court to impose sanctions – hammer the prosecution – for not turning it over. And if the court doesn't/didn't, then under this *still-hypothetical* rule I'm talking about, I THINK it could be grounds for an appeal.

    Memory is fuzzy, but I believe something analogous happened in the zimmerman/martin case in Fl. There were pictures of the back of Mr. Zimmerman's head that -if memory served – showed injuries to Mr. Zimmerman. The prosecutor (going from memory here) turned over b/w xerox copies, and withheld color copies. Mr. Z.'s lawyers asked the court to force the prosecutor to turn the color copies over because it was exculpatory evidence. The court did compel production, but the prosecution stalled for quite a while. I don't remember whether they were sanctioned for not turning them over quickly enough but there was an issue about it, as I recall.

    I know, I know. Different states, different cases, different rules. I'm just using Messrs. Zimmerman and Martin as an example of the rule I'm talking about.

  66. says


    Nothing substantive to add, but just wanted to say I thought this was an extremely well-written and necessary post. Thanks.


  67. Grifter says

    @Quiet Lurcker:

    There's a difference between providing exculpatory evidence during discovery, and including possibly exculpatory evidence in the indictment.

    Also, the "lol"/"J/K" bit is contested by prosecution I think, so it might not have even been present. However, if it WAS present, that is part of the post and inherently part of its context, so I'd agree that leaving it out would probably be at least some kind of rule violation. And if the original comment had mention of the online dispute within it, I'd agree with that, too.

    What I'm saying is that it's not unethical to not include "exculpatory" explanations that you think are bullshit. If the LoL exchange wasn't mentioned in the F/B post, it's NOT inherently part of the context. It may or may not relate at all. That his family asserts it is is fine and dandy, but I wouldn't say it was unethical not to include it when indicting. If there was something IN THE POST that was excised, that would be another matter entirely. Of course, that the indictment exists in the first place can be argued as a terrible thing, however, the little bit about context isn't as problematic as seemed to be stated, unless there WAS some direct reference, and/or the J/K was excised.

  68. Manatee says

    Do we have information on the helpful Canadian who decided to ruin this guy's life over a video game spat? I've been looking through articles with no luck.

  69. perlhaqr says

    Erroll: If you think my position embraces abuses of state power then you've seriously misread my argument.

    No. I do not think think your position embraces abuses of power, and that wasn't what I was objecting to.

    I wouldn't even say that my position from the other thread was even particularly about "abuses of state power" (though of course I object to that too.) My objection was to the abuse of the power of the state, which is a subtle rephrasing, with vast consequences.

    An abuse of state power would be a government employee using a law for personal gain. An abuse of the power of the state is making a law about something there shouldn't be a law about in the first place.

    f any discussion with you about anything, ever, ultimately descends into discussions about crappy cops and police brutality, I can say I agree with you on the brutality issue and that its not worth attempting to discuss anything else, full stop.

    Which is not what I was talking about at all in the other thread, and if you think it was, then I did an atrocious job of getting my point across. I was not talking about individual abuses by individual cops. I was talking about the underlying principle of government and laws, and how when a law is made, the final resort of enforcing that law–any law–is violence.

    It is impossible for me to forget that principle.

    And while I recognized that we weren't going to reach a place of agreement on the subject, and concurred that we were probably both wasting our time trying, I never said I wouldn't be snarky about it. ;)

  70. Quiet Lurcker says

    @Grifter –

    One final attempt to drive home the point that context matters.

    If I want YOU to be scared/do something, I have to tell YOU that I'm going to fill_in_the_blank. And I have to choose to do so. If I say I'm going to fill_in_the_blank on an internet forum, and append symbols which are accepted in that forum as denoting sarcasm, then chances are good, I'm not speaking directly to YOU, because I did not CHOOSE to get that information to you, unless I knew you would see that post.

    In other words, a threat has to be communicated directly to the intended victim or left where there is no question the intended victim will see/receive the threat in order for it to be a threat.

    To the best of my knowledge, this young man did NOT communicate a threat to his intended victim(s). Therefore no threat.

  71. Grifter says

    @Quiet Lurcker:

    I have literally no idea why you keep making this point, over and over and over.

    I am NOT DEFENDING the overall prosecution. How many times can I explicitly say that?

    I am ONLY defending the removal of the game context from the indictment. This context has not been definitively established. I've even EXPLICITLY said that, if the post included language like lol, or j/k, divorcing that from the message WAS unethical.

    And YES. Context IS important. I have not once denied that. My entire POINT, though, is that this supposed context has been asserted without, thus far, any evidence that I've seen except a father's assertion. Clearly, the state doesn't buy that this context, if it even exists/occurred (we don't even know that!), is relevant.

    So I don't see it as wrong for the state to ignore it IN THE INDICTMENT. If they DO have evidence of it, IT NEEDS TO BE GIVEN TO THE DEFENSE, AS I NOTED.

    How many times do I have to say I'm not defending the overall point? How many times do I have to note that, while context is important, we haven't seen anything to indicate this context is real or relevant?

    Imagine, for a minute, that this whole League of Legends thing is an UTTER FABRICATION.

    Would the state be "wrong" to not include what they see as a LIE in their bloody indictment?

    THAT'S my point, and only that. You're right, this "threat" argument is probably bollocks. But the intention thing? NEVER WAS DEFENDING IT. Explicitly said I wasn't defending the overall prosecution, just this ONE part of it against the charge that it was dishonest not to include this unestablished, asserted-by-someone-who-has-a-vested-interest-in-the-defense, supposed context that we (as observers who don't get to see everything) have seen no evidence of whatsoever.

    If someone says the Nazis did nothing right, I can point out that they at least were meticulous in their paperwork. That is not defending the Nazis. (No, I'm not making an equivalency here, just a simple analogy that making a point about ONE part is NOT defending the whole).

  72. says

    1. It needs to be in the search warrant and arrest warrant application, or it may be a Franks issue.

    2. It doesn't have to be in the indictment.

    3. Does it have to be presented to the grand jury? Believe it or not, the law varies jurisdiction to jurisdiction over whether prosecutors have a duty to present exculpatory evidence to the grand jury. Not sure what Texas law says. (A skillful lawyer might argue that presenting the "threat" without context constitutes presenting false information, not just failing to present exculpatory information.)

  73. Grifter says

    Thank you for the clarification Ken. Out of curiosity, though, do we know the chain of events?

    It seems:

    Lady in Canada clutches pearls, calls police on post without inherent context.

    Police, also lacking that context…get warrant after seeing that post, as first thing along with their investigation? Or get it after doing a modicum of research? The search warrant affidavit only says they got the report, confirmed who it was, asked at the house to confirm the guy lived there (never seem to have talked to him prior to filing?). The arrest warrant says that there was a "conversation"; I REALLY wish we knew what it was…that "crazy" comment that spun this all out could totally have been in that Facebook thread, in which case it would truly be dishonest to not include it.

    I guess I'm curious… Obviously, I'm approaching this from a layman's understanding of general ethics, while you know the, y'know, REAL RULES and such and whatnot.

    How do we know the context was stripped and not simply not found, I guess is my question?

  74. Ancel De Lambert says

    Some GOOD news: an insanely generous soul just placed his massive dick on the counter as collateral and bailed Justin out. So at least the kid gets to ATTEMPT to heal his shattered psyche.

  75. Dan Weber says

    And Reagan did no jailtime for it.

    I hope so. He said that as a mike check to the radio technicians. No one outside of the room heard it, until someone replaying a recording to the media. He never "announced it to the world."

    (I grew up thinking he said it over the air, too.)

  76. Erroll-Flynn says

    @perlhaqr • Jul 12, 2013 @11:29 am
    Ah, from what was happening in THIS thread I thought they were getting conflated (and Kevin obviously made that jump to try to score a rhetorical point).

    You were getting your point across just fine in the other thread, no misunderstanding there, it just got cloudy here. Obviously we just totally disagree on how to frame the issue, so no sense in banging our heads together vainly like two Pachycephalosaurs.

  77. Manatee says

    @Dion: the spirit of free speech, and her less attractive, but hardworking cousin, the spirit of free enterprise, both say it's up to you whether to fire the contractor, after balancing how much you disagree with the contractor, how much your business is enabling or seen as tacitly endorsing his or her position, and how great a deal you're getting on your new deck compared to other options out there. If your actions are seen as overbearing, then other free-speaking free people will respond appropriately.

    Other issues to consider: Does your contractor's position include the violent overthrow of government? If so, how likely is it that your patronage will help fund that revolution? Does your contractor's position include substantial political lobbying using his position as one of the preeminent science-fiction contractors in the community? If so, how much does the continued business you give him contribute to his reputation, which in turn helps to promote his views?

  78. Manatee says

    Apologies, I opened the wrong window. Please delete that last comment if you can.

  79. AlphaCentauri says

    I haven't heard how the woman in Canada saw the post, either.

    You can't assume the kid was "announcing it to the world." The marketers of the world would love it if FB worked that way, but there are limits to how many people see a post. And most users don't understand how to set them. It's entirely possible that Justin had his setting for "friends only," the equivalent of a mic check. But once someone comments on the thread, all of their friends may see the reply on their walls. It's possible the threat, the comment and the "lol j/k" were in three different posts, but the woman in Canada only saw the one in question because her nephew was on Justin's friends list and made a comment on that one post and not the others. A screen shot from one account would be entirely different from a screenshot taken from someone else's account.

    It may have been completely reasonable for her to alert the police. She may have had no way of knowing the context, and she would have had no way of knowing if Justin was known to be dangerous or was just known to be immature. The local folks are supposed to use their judgment to distinguish the two, and they failed miserably.

  80. Alex says

    Interesting. The real test to see if he was dangerous or a threat of not would be to check if he were on psychotropic medication. Every actual school shooter has been. It's the common denominator.

    One minute someone is having normal life problems. They are put on these drugs because, you know, if you encounter a regular life problem you might not have an instant solution for, well then you must be mentally ill. Next thing you know the person is suicidal or homicidal. Great solution.

  81. says

    @Alex: This is the same "logic" that one can use to conclude that chemotherapy causes cancer, because people who die of cancer have often been undergoing chemotherapy. (Sadly, there are people out there that stupid. Hopefully, you're not one of them.)

    Without psychotropic drugs, there would be MORE whackos, not less. That they don't help everyone is hardly evidence they don't help anyone.

    The per-capita murder rate has dramatically declined over the past 20 years. Given that, any argument that particular thing (drugs, video games, internet porn) causes people to become violent demands particularly rigorous evidence. Correlation isn't always causation… but lack of correlation pretty much always is lack of causation.

  82. barry says

    @Dan Weber, I'm sticking with the similarity. Neither Reagan or Carter intended to announce their joke to the world, but they both eventually did, through either the woman in Canada or the radio technician.

    That Russia took it as a joke might have been misleading too. A Soviet army was put on alert for 30 minutes (but it's hard to tell because military types are funny_ it might have been a joke alert).

  83. Joe Pullen says

    That was a stupid thing for the kid to post, but there is a difference between "stupid" and "actionable". Since it was reported to police they have to do something, . . </blockquote?

    Actually @Sami, the police are under no requirement to follow up with the young man simply because it was reported . . . they made a choice to do something. Reports are filed all the time that police do not follow up on.

  84. AlphaCentauri says

    @Alex, the fact that you think that only tells you how much difference such medications make. When was the last time you heard of someone who had to be hospitalized for months for a "nervous breakdown?" Not only do medications make it possible for them to be treated as an outpatient, primary care doctors are being trained to recognize early stages of mental illness before people get so bad they attempt suicide. Are they overused? Of course. But they aren't causing mentally stable people who are "having normal life problems" to turn into mass murderers.

  85. Mark - Lord of the Albino Squirrels says

    "3. Does it have to be presented to the grand jury? Believe it or not, the law varies jurisdiction to jurisdiction over whether prosecutors have a duty to present exculpatory evidence to the grand jury. Not sure what Texas law says."

    From what I understand, the Canadian lady first informed Crime Stoppers in Canada. It was that organization which then contacted the Austin police. I've always been curious about how Crime Stoppers works, so I looked on their site and found this:

    "The State of Texas went even further to protect the crime stoppers information in 1981.4 Texas statutes make it almost impossible to obtain the records not only of the Texas Crime Stoppers Advisory Council, but all crime stoppers programs operating within the State of Texas. Like New Mexico, Texas has a criminal penalty for unlawful disclosure."

    From reading that, it seems as if we won't know what the actual context was without CS Canada deciding they want to release it. NAL, so I could be mistaken.

  86. Dave says

    sigh. What happened to "Community policing"? Which would have a better impact.
    1) What happened; or
    2) One (1) police officer turns up and has a talk with him about 'appropriate behaviour'. Nothing more. Just a 'dude, that was not cool' talk.

    Do you think if Justin had a cop turn up after that comment, KNOWING he had not given that information have put some serious thought into "Maybe I shouldn't say stupid crap like that online"

    Now? We have a boy that is abused by the system. Inmates or not. They are part of the system, which we apparently use for justice.


    What Justin did was stupid (Or if Canadian. Impolite). It should not have been, nor ever be, this.

  87. James Pollock says

    Lizard, a while back you commented:
    "“My advice is don’t say anything on the internet you wouldn’t say in front of a police officer, a judge, a prosecutor or your mother,” Shrager said."
    and concluded with
    "a lawyer to say "You ain't go no free speech rights on no Internet!" seems to veer quite close to professional incompetence."

    The advice to not put anything on the Internet that you wouldn't want your employer, your Sheriff, your wife, or your grandma to read is neither new not is it incorrect.
    The fact that you have a right to do something doesn't mean that doing it is a good idea. Lawyers advise people to not exercise their rights all the time. (The first amendment says you have the right to speak. The fifth says you have the right to shut up. Now where have I seen a lawyer advising people to just SHUT UP…)

  88. says

    A lawyer advising you to shut up after you've been arrested? Abso-friggin-lutely.

    A lawyer advising the general public to say nothing that might cause anyone, anywhere, to be offended, shocked, or annoyed, because doing so might lead to your arrest on baseless charges? That's pretty much the definition of "chilling effect", and it shows how broken society is.

    We've seen many, many, cases, of cops arresting people for non-crimes, because the cops either don't know the law, or don't care about the law. We need a one-strike system for law enforcement: If you arrest someone for a non-crime, you become a non-cop. It's your JOB, as a LEO, to know the law. If you don't, you're incompetent. Get a segway and find a mall, you're done here.

  89. Dale says

    "In my experience it's the older conservative folks that prefer the over use and abuse of police and prosecution powers, not the progressive young folks."

    I would argue that your experience is very limited then. Many of us older conservative folks remember when americans had much more freedom and are damn angry at the current police state we live in today. Almost everyone I associate with, my age and older, vote and we generally agree that the government has too much power and we vote to limit it.

    Having said that, in the interest of full disclosure; 1) as I have gotten older I have actually become more moderate than conservative, 2) I generally wouldn't hang out with a lot of people who didn't have similiar beliefs that I do so my experience is also limited I suppose.

    My belief is that most of the problem lies with a general complacency of the general population in regards to the government's abuse of power. Most think it will ever happen to them and they don't realize that it's happening all around them all the time.

  90. Manatee says


    I had a friend who was visited by the FBI over a 4chan post. Depending on who you believe, he either posted a joke about the Batman movie shooting, or posted a funny picture in response to that joke, but that detail isn't all that important.

    What I did take note of was the fact that the FBI and the local officers than accompanied them were complete professionals. They didn't try to scare my friend with trumped up "threat crime" charges, they pretty much told him that joking about things like that scare some people, checked him to see whether he had the means/mentality to actually carry out a threat, and probably kept an eye on him for a while after that. Which, I think, was a perfectly prudent and proper response that accomplishes the goals of 1) responding appropriately to investigate any threat, even unlikely ones (for the children!) and 2) not trampling on anyone's civil rights for saying stupid crap on the internet.

    Not that I'm asserting the FBI's behavior is always perfect, but at least they know that those two goals aren't mutually exclusive.

  91. Manatee says


    You might be mistaking correlation for causation. It could be that mass-murder-prone people tend to have other mental problems or exhibit signs of mental problems that make people tend to want to prescribe psychoactive drugs for them.

    There's a high correlation between Rogaine usage and bad toupees. The former probably does not cause the latter in cases where the latter wasn't used before. Unless it does, in which case I smell a great class action.

  92. James Pollock says

    "A lawyer advising the general public to say nothing that might cause anyone, anywhere, to be offended, shocked, or annoyed, because doing so might lead to your arrest on baseless charges? That's pretty much the definition of "chilling effect", and it shows how broken society is."
    You're inferring different things from the guy's advice than I am. If I advise people to stay out of certain parts of town, am I offering prudent advice on avoiding being assaulted, robbed, or worse, or am I trampling upon the fundamental right of free movement?

    "We need a one-strike system for law enforcement: If you arrest someone for a non-crime, you become a non-cop."
    To be fair, some subset of those wrong arrests come about because the judges haven't yet decided what the law actually is.

    "It's your JOB, as a LEO, to know the law. If you don't, you're incompetent."
    Evidence suggests that approximately 50% of lawyers engaged in contested cases are wrong about either the law or how the law applies to the facts. The existence of appeals courts suggests that judges don't always get it right, either.

  93. says

    I have no problem with any officer of the law or the courts that makes this sort of mistake continuing to be an officer of the law or the courts, but only after they have suffered through exactly the same sort of suffering that they caused by their mistake. If they go through a few months in jail with occasional incidents of prison rape and some time in solitary, then they can keep their jobs. Otherwise their career is done.

    That is how I would run the system, were I given free reign to do so. And I assure you there would be a lot fewer mistakes made by malicious or incompetent government officials. There would also be a lot fewer government officials in general, which would also be an improvement.

  94. says

    It seems to me that the authorities over-reacted, realized their error and then stuck the kid in jail where he would be, effectively, tortured by other inmates until he (hopefully) gave in and was willing to plead guilty to anything to get out of jail — even a plea that wouldn't get him out until his mid-20s.
    1st amendment 4th amendment and maybe even 5th violations.

  95. Careless says

    Somehow I missed the "she took a more aggressive posture on the bed" post when it was new. Wow.


  1. […] The news media, which should have an interest in protecting the same amendment that (theoretically, these days) protects them, gave some fleeting coverage to the story but quickly dropped it in favor of gushing over infant foreign monarchs, finding ways to vilify George Zimmerman and making bad Weiner puns. The blogosohere has been pretty silent too, with some notable exceptions. […]