Tumblr "Experimental Literary Piece" Leads To Threat Conviction

Caleb Jamaal Clemmons, a 20-year-old psychology major at Georgia Southern University, posted what he called ""an experimental literary piece and an art project" on his Tumblr: "Hello. my name is irenigg and i plan on shooting up georgia southern. pass this around to see the affect it has. to see if i get arrested."

Indeed he was. He was arrested for terroristic threats under Georgia law and spent six months in jail awaiting trial because his family couldn't afford the $20,000 bail. Yesterday he accepted a guilty plea and was sentenced:

Superior Court Judge John Turner sentenced Clemmons to five years of probation. During that time he is banned from four counties, including the one in which his school is located, and he is not allowed to use social media. He must complete a mental health evaluation within 30 days of release. He must also complete a drug and alcohol evaluation and avoid contact with alcohol and illegal drugs during his probation.

He was additionally sentenced to six months in jail, which he has already served, and 150 to 180 days at a probation detention center, which was suspended. He will be released today.

Clemmons' art project presents a slightly more difficult case than the Facebook comments of Justin Carter, whose statement was unequivocally a joke in its context. Clemmons was charged under Title 16, Section 16-11-37 of the Georgia Code:

A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence, to release any hazardous substance, as such term is defined in Code Section 12-8-92, or to burn or damage property with the purpose of terrorizing another or of causing the evacuation of a building, place of assembly, or facility of public transportation or otherwise causing serious public inconvenience or in reckless disregard of the risk of causing such terror or inconvenience.

I've talked before about how threat statutes can have objective or subjective components, or both: that is, they can require proof that (1) a reasonable person would interpret the threat as a genuine statement of intent to do harm, or (2) the defendant intended that it be taken as a genuine statement of intent to do harm, or (3) both. Georgia has adopted a subjective test for this statute:

“A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence[ ] … with the purpose of terrorizing another[.]” OCGA § 16–11–37(a). See Lanthrip v. State, 235 Ga. 10, 11, 218 S.E.2d 771 (1975). “The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.” Armour v. State, 265 Ga.App. 569, 571(1), 594 S.E.2d 765 (2004). Thus, the State must establish two elements to sustain a conviction for making terroristic threats: (a) that the defendant threatened to commit a crime of violence against the victim, and (b) that the defendant did so with the purpose of terrorizing the victim. Martin v. State, 303 Ga.App. 117, 119(1), 692 S.E.2d 741 (2010).

Clement v. State, 309 Ga. App. 376, 379, 710 S.E.2d 590, 592 (2011)

Did Caleb Jamaal Clemmons threaten to commit a crime with the intent to terrorize? That is, was the subjective test satisfied? I can't know what's in Clemmons' head, but I suspect the answer is no — that he didn't form the specific intent to terrorize anyone. His problem — and the reason that this incident isn't as clear-cut as Justin Carter's — is that his statement contained within it a suggestion that he thought someone would take it seriously enough to report it to police. His words "pass this around to see the affect it has. to see if i get arrested," conveyed that Clemmons thought, in a muddle-headed way, that someone might take the threat as true enough for him to be reported to police and arrested for it. I suppose you could take it as commentary — "let's see whether something that is clearly not a threat gets me arrested for a threat" — or, as he said, "artistic," which might mean anything or nothing. But uttering a threat (even a satirical or frivolous one) and following it up with "pass that around and see if it gets me arrested" is rather astoundingly reckless and imbecilic.

In short, in contrast to other recent internet threats we've seen in the news (like Carter's), I think that there was probable cause to arrest Clemmons, but that it is very questionable whether he should be convicted. I don't think an objective test for true threats could be met beyond a reasonable doubt, and there is a colorable argument that the First Amendment requires an objective test even when a statute purports to impose only a subjective test.

The injustice of the case was that Clemmons was detained pretrial for six months even though investigation showed he had no weapons and there was no indication whatsoever he intended to hurt anyone. He spent six months in jail because his family is poor; someone with the assets to post bail would have been out in a day and likely would not have been sentenced to any jail time. The scope of the restrictions on his activities and movements is also very troubling given the nature of his "threat." They don't seem to have a rational connection to the offense.

One lesson of the Clemmons case might be "don't be an moron and make threats and speculate whether you'll get arrested for them." But another might be this: as think-of-the-children and OMG-9/11 thinking drives governments to prosecute more and more internet rhetoric, poorer people will usually be hit harder, as they always are by the criminal justice system.

Tim Cushing has some thoughts as well.

Last 5 posts by Ken White

Comments

  1. SGlynn says

    Not that I know anything about US law, but doesn't the bit about "in reckless disregard of the risk of causing such terror or inconvenience" (including the evacuation of buildings) pretty much describe what he did?

    Whether or not anyone was supposed to take the threat seriously, I would have thought there was a pretty obvious risk that someone would evacuate the school, just in case.

  2. Dan T. says

    He used "affect" where "effect" was called for… surely such crimes against English language usage deserve punishment.

  3. NI says

    I think the "think of the children" crowd has gone completely crazy and the legal and social policies they've given us deserve nothing but derision. That said, the practice of law largely consists of being able to accurately predict the consequences of doing and saying certain things. At this point in time, it's entirely predictable that somebody who posts what Clemmons posted should expect a SWAT team to kick in his door and haul him off to jail. Just like it's entirely predictable that somebody who makes a bomb joke to a TSA officer at the airport will have an unpleasant day as well.

    I don't like those predictions, any more than I like a weatherman telling me a hurricane is headed for my neighborhood. But that's the forecast, like it or not. Anyone who tries standing up to the hurricane is a fool.

  4. bralex says

    Does it make a differene (remembering that I'm an engineer, not a lawyer) that he's being punished for _making_ a threat, not for _being_ a threat?

    As an aside, it would make a large difference to me whether he called it an art project before/while posting, or if that was his claim only after he was arrested.

    Doesn't the system of bail always discriminate against the very poor? I don't mean that as a slam, the point of bail is to tie someone down a bit so they don't run off and lose the money they put up. No money = no bail, is that _bad_?

  5. lelnet says

    Even you, Ken, writing a post implicitly arguing that the outcome of the case was unjust, described the defendant's conduct as "reckless", just as the statute he's accused of violating does. I'd say that, under an objective "reasonable man" standard, he's just as guilty. (Are you not, after all, a reasonable man? Are you not, indeed, likely to be biased — if at all — in favor of his _innocence_?) And had this gone to trial and I been on his jury, that's probably how I'd have voted. ("Probably", because what I know about this case, I know from this post here. Which is not the same set of things a juror would know.)

    We're not talking, here, about somebody who engaged in hyperbole, intending that it be taken as hyperbole, and was subsequently surprised that the jackbooted thugs of the leviathan state chose to take it as a literal threat. I don't think it's even reasonable to consider that as a hypothetical possibility about what his state of mind was. This guy's statement clearly shows that he foresaw not merely the possibility, but the _likelihood_ that it would be interpreted as a literal threat. He does not appear to have taken any effort to mitigate that risk. Indeed, he seems to have deliberately courted that risk.

    It is fair, I think, to argue about the reasonableness the fact that the entire custodial portion of his sentence was served in pretrial detention. He probably didn't need to be in jail longer than it took the cops to verify that he lacked the means to carry out his threat…even if six months incarceration _is_ a just component of the sentence for his crime, he shouldn't have needed to serve it _in advance_.

  6. R R Clark says

    I think the rather lenient sentence tells the truth of the matter here. He made a very stupid mistake (even if his intentions were good). One that potentially cost the college and state quite a bit of money. Consider what you do with your kids when they push the boundaries of what is (previously) defined as acceptable: you take corrective action.

  7. bob says

    @NI: Unfortunately now when people "think of the children" they think of Virginia Tech, Newtown and in my neck of the woods they think of the Columbine and Bailey High School incidents. The sad reality now is that law enforcement has to take any school threat seriously until they figure out whether it's a legit threat or not.

  8. Ryan says

    While I think Clemmons is definitely guilty of being a shit-disturbing idiot with poor judgement and an even poorer grasp on how society now takes 'terroristic' threats (very, very seriously, and often beyond what's reasonable), the sentence and bail issues are indeed disturbing.

    The bail system as a whole is set up to implicitly discriminate on the lines of economic class – it's been a flaw from the very beginning. The unfortunate part is that – short of embedding GPS tracking devices in every person on bail in a manner that they cannot be disabled – there are very few other options to compel people released on bail to stick around and show up for court when there is cause to believe they might not. That's further complicated by cases where refusing bail or setting it astronomically high is perceived as necessary to prevent someone who is dangerous from causing more trouble while a serious criminal charge it dealt with. I don't know that any of those caveats truly apply to Clemmons, though.

    More disturbing to me is the sentence. Clemmons appears to be guilty of being a dipshit. Unfortunately, this type of dipshittery is also a criminal offence and a hot-button issue in the public consciousness. The sentence reflects that severity, but does not reflect the mitigating factors – that Clemmons is a dipshit but really doesn't appear to have been one of the type (from the facts of the case) that carries through on what looks like a threat.

    Contrary to the assertions of RR Clark, I don't think 5 years probation, mental health assessments, a ban on freedom of movement, and let's not forget six months de facto jail time constitute a 'lenient' sentence in this case.

  9. Joel says

    I get the impression from the content of his post, that Clemmons was attempting to make a statement about the state of our nation in how we respond to situations like Carter's. So I'm curious as to whether an argument could be made for his post being a political statement rather than an overt threat. Could a case be made for this speech to be in some way protected? Then again, getting arrested might help illustrate his point better. It certainly illustrated the "this is a very bad idea and no one with common sense should do it" point quite well.

  10. Will says

    What does “not allowed to use social media” mean, and how is it consistent with the First Amendment? Is talking a social medium? Which media are anti-social?

  11. ZarroTsu says

    I shall play as a Spy with an Enforcer on TF2, and shoot one player every hour on the hour until America meets my demands:

    Cancel Smurfs 3.

  12. princessartemis says

    It strikes me that the punishment does not fit the crime. He is guilty of being a young dumbass, nothing more. Sentencing a 20-year-old dumbass to no beer on his 21st birthday, five years of curtailed 1A, banning from four counties, and six months jail for young dumbassitude is pretty severe.

    I am sure someone will say, "But what if had been serious!" Well, if he had been serious, horray, they caught him before he did anything. And if he had been serious, someone would have found some evidence to suggest he was serious beyond a Tumblr post. Then the punishment might fit the crime.

  13. wumpus says

    One thing to note here (which relates to the recent change in Federal Charging Guidelines and specifically called out in the popehat article on it) is that being poor is if not a crime, at least an aggravating charge while being sentenced. The kid served 6 months for not having bail money available (during which he was a threat to what, commit performance art?). He was also sentenced to 6 months time served, which seems meaningless but will make any future sentencing worse and quite likely interfere with future employment. From the sound of it, the judge was willing to suspend any sentence given, but I am still shocked at the bail level set out of reach.

  14. jb says

    This is a type of case that I find very frustrating to discuss with people.

    Clearly, he is an idiot who should not have done what he did, both for moral/ethical and practical reasons. Equally clearly, the punishment was grossly disproportionate.

    But if I make the second point to a member of the statist majority, they respond with the first point, as if it invalidated the second. And there are many on the other side who seek to excuse him entirely.

    The idea that an act can be bad and requiring some level of punishment that is nonzero but less than that actually applied, is apparently too complex for most people to grasp.

  15. bralex says

    I reread everything linked, just to see what I missed. I guess I don't really see the punishment as "grossly" excessive, though severe. The only bit I'm not sure of is the 4-county ban – one of them is the county the school is in which makes some sense.

  16. En Passant says

    lelnet wrote Aug 21, 2013 @9:58 am:

    Even you, Ken, writing a post implicitly arguing that the outcome of the case was unjust, described the defendant's conduct as "reckless", just as the statute he's accused of violating does. I'd say that, under an objective "reasonable man" standard, he's just as guilty. (Are you not, after all, a reasonable man? Are you not, indeed, likely to be biased — if at all — in favor of his _innocence_?) And had this gone to trial and I been on his jury, that's probably how I'd have voted.

    I must make every effort here to ensure that my response to this "reasoning" is not construed as ad hominem.

    In a statute, the word "reckless" is a legal term of art. But not every utterance of that word by Ken or anyone else discussing Mr. Clemmons' unfortunate experience under this misbegotten exercise of official malice is a term of art.

    The word "reckless" in the context of Ken's statement does not mean what the same word means in the context of a statute. For rational people this is an elementary distinction.

    The inability to even comprehend that words draw their meaning from context appears to be shared by many, including the police, prosecutors and judges who clutched their pearls and recoiled in horror at Mr. Clemmons' silly and inherently harmless remark. Mr. Clemmons' recklessness was his failure to notice that the attraction of official power without accountability drives the sadistic, the craven and the irresponsible to seek such posts, and encourages them to act accordingly.

    Mr. Clemmons' recklessness is entirely forgivable. Few of us want to believe that such irrationality is endemic, and indeed appears to be considered a virtue by those whose thought processes it overcomes.

    Words have meaning only in context. We ignore that fact at our peril.

  17. Renee Marie Jones says

    Congress shall make no law abridging the freedom of speech. (later applied to limit state laws as well)

  18. Steven H. says

    @Renee Marie Jones:

    "Congress shall make no law abridging the freedom of speech. (later applied to limit state laws as well)"

    Note that the "stay off social media" wasn't part of a law, it was a ruling by a judge.
    In other words, Judicial Branch, not Legislative.

    Personally, I believe that part of the ruling would be relatively trivial to overturn on appeal (though it's unlikely this knothead could afford an appeal – perhaps a Popehat Signal on his behalf?)

  19. asper84 says

    Does the US have a similar "wasting police time" law as the UK?

    It seems to me that's what he was guilty of really – the police had to investigate but he was no real threat so he wasted their time.

  20. says

    With respect to whether the sentence violates the First Amendment, it doesn't. The judge could have sentenced the guy to prison, so any lesser restrictions on his civil liberties are allowed. For example, it is routine for probation orders to state that the defendant's premises can be searched at the discretion of his probation officer, which would normally violate the Fourth Amendment.

  21. Dan says

    To those wondering about the First Amendment implications of the "no social media" order–remember that this is part of a sentence for a crime. Congress (and the states) may not deprive you of life, liberty, or property without due process–but with due process (e.g., a criminal conviction) they most certainly can. This particular restriction may be overly broad, but I don't see it at all as a slam dunk.

  22. lelnet says

    The word "reckless" in the context of Ken's statement does not mean what the same word means in the context of a statute.

    Were Ken just another internet blowhard making random commentary on the news of the day, I might assume that he means, by "reckless", what other random internet blowhards mean by "reckless" (that is "whatever the fsck I feel like meaning, just like what I mean by every other word I use…precision of language doesn't matter!").

    He isn't. He's an attorney-activist, who has made a name for himself in large part due to his pointed commentary on legal situations meaningfully similar to this one, informed by his study of the relevant case law.

    Given that, it seems presumptuous to assume that, when he uses a word which is both as topical and as charged as "reckless" is, he _isn't_ using it in the normal way.

    BTW, Mirriam-Webster's Dictionary of Law defines "reckless" as:

    reckless adj: characterized by the creation of a substantial and unjustifiable risk to the lives, safety, or rights of others and by a conscious and sometimes wanton and willful disregard for or indifference to that risk that is a gross deviation from the standard of care a reasonable person would exercise in like circumstances [a state of mind may be inferred from conduct]

    (Black's Law Dictionary phrases it a bit differently, but articulates a similar standard. If you have a conflicting source you prefer, and really want to have an argument about what "reckless" means in the law, feel free to cite it.)

    That certainly sounds like a good description of the defendant's conduct in question to me. "to see the affect[sic] it has. to see if i get arrested" says pretty clearly, to me, that he was aware of the risk that his post would be regarded as a serious threat. Being aware of said risk, and making no effort to mitigate it, he acted anyway.

    Now, perhaps Ken, when he said "reckless" didn't mean what "reckless" means according to the dictionary. If so, then I misunderstood him, which I suppose would be unfortunate. But in the event that there is doubt about whether Ken means what he says (I presently harbor no such doubt, but apparently you do), then in the absence of some indication from him that he didn't mean it that way, I'm going to go ahead and assume that he did. Especially when the word in question is utterly crucial to the meaning of the very law he's posting in order to comment on.

    If, in fact, I am wrong about what Ken meant, and he wants to say so, then I'll freely accept being called "wrong", or "incorrect", or "mistaken", or some other such synonym for a person who has — with neither malice nor a culpable degree of negligence — made an assumption that turned out to be false. In fact, I'll call myself all of those things, if that comes to pass. But there are an awful lot of adjectives being implicitly or explicitly attached, in your comment, to anyone making that assumption, which I do not accept.

  23. Resolute says

    I'm not sure what he should have expected, really. On the one hand, there are the arguments against the police state. But on the other, he lives in a country where school shootings are far too commonplace. Honestly, I'm having trouble sympathizing with him for being forced to spend spending six months in jail for being an idiot in the first degree. However, that does not mean that the point about poorer people suffering disproportionately by such laws and enforcement of them is not completely accurate.

  24. says

    Lelnet, En Passant suggested Ken did not use reckless in terms of it's legal context. That is not the same thing as "Ken was not using the dictionary definition of the term".

    It would appear you drove right past that particular part of the conversation, and into "the argument is whatever I want it to be".

  25. lelnet says

    The only person who can possibly know for _sure_ what he meant is still around, and free to clarify. Maybe I was right, or maybe I was wrong. I tend to suspect the former, but accept that the latter is a possibility.

    I don't know if "En Passant" numbers me _personally_ among "the sadistic, the craven and the irresponsible", or merely among their enablers. It is more than clear that he considers me "irrational". Even if it eventually turns out that I was incorrect, I still object to being characterized in such terms as those.

  26. NI says

    One thing that occurs to me is that the people who gave us Columbine, Newtown, and all the other horrific events that have put the statist majority on edge, did not post on social media that they were going to do it; they just did it. It seems to me that the person who says, "I'm going to blow up a school," is far less dangerous than the person who simply plans to blow up a school without warning anyone he's coming. After all, if someone seriously did intend to blow up a school, why on earth would they tell anyone about it in advance?

  27. Matthew Cline says

    After all, if someone seriously did intend to blow up a school, why on earth would they tell anyone about it in advance?

    Well, those type of people are already very irrational and/or mentally ill, so in theory they could be irrational or mentally ill in a way that would lead them tell people in advance. But in practice that's never happened.

  28. says

    My use of the term "reckless" was colloquial, not calculated to invoke any legal standard. If I had wanted to invoke the legal standard I would have found a case cite that gave the elements for a prosecution under the "recklessness" theory.

    For what it is worth — and after a lunch at which, because I am a motherfucking partner and can do so if I want I had a few drinks, a little statutory analysis:

    A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence, to release any hazardous substance, as such term is defined in Code Section 12-8-92, or to burn or damage property with the purpose of terrorizing another or of causing the evacuation of a building, place of assembly, or facility of public transportation or otherwise causing serious public inconvenience or in reckless disregard of the risk of causing such terror or inconvenience.

    I read that as calling for proof that:

    (a) the defendant threatens to commit any crime of violence, to release any hazardous substance, as such term is defined in Code Section 12-8-92, or to burn or damage property; AND

    (b) the defendant
    (i) had the purpose of terrorizing another OR
    (ii) the purpose of of causing the evacuation of a building, place of assembly, or facility of public transportation or otherwise causing serious public inconvenience OR
    (iii) was in reckless disregard of the risk of causing such terror or inconvenience.

    So: I read the statute to say that he has to intend to cause terror OR intend to cause evacuation or serious inconvenience OR be reckless of the risk of causing the same.

    As I said, I doubt that the threat meets the objective test in this context, so I suspect that most people reading it wouldn't interpret it as a true threat. Therefore, I don't think there was a significant risk of actual terror of which he was legally reckless.

    FWIW.

  29. Al says

    Just for the record, Clemmons didn't cost the school anything. As the Techdirt article notes there was no evacuation and the student body wasn't even notified.

  30. Tim! says

    How exactly does making this false threat "[create] a substantial and unjustifiable risk to the lives, safety, or rights of others"? Clemmons's action was reckless in regards to his own life, safety, and rights, but I see exactly zero infringement on any right except perhaps the questionable right to not be scared and paranoid.

    The cliched shout of fire in a theater clearly presents a risk — of trampling as a herd of people try to exit more quickly than the egress allows. What is the risk presented by an empty threat to shoot up a school? This is an honest question.

  31. AlphaCentauri says

    I found data that 1,055 explosive devices were found in schools from 1990-2002, and the schools received advance threats in 14 of those cases. The number of baseless threats is unknown because they usually aren't reported. But since the risk of a real bombing isn't zero, there usually is an expensive and time consuming evacuation and search each time. There is also the issue of copycat crimes; if someone makes a bomb threat and gets a school evacuated, there will generally be numerous subsequent threats by people trying to ditch school. Schools spend an inordinate amount of time creating response plans for these events, too.

    If the authorities were trying to make an example of this idiot to discourage others, I'm not sure this case would do it, though. Six months in jail while you're presumed innocent and freedom after you plead guilty isn't the sort of black-and-white lesson that adolescents respond to.

  32. lelnet says

    As promised, here I am admitting that my supposition about Ken's intended meaning was wrong. Also "mistaken", "erroneous", etc.

    Still don't think "irrational" is a fair characterization, though. Let alone "sadistic", "craven", or "irresponsible".

  33. says

    @asper84

    Does the US have a similar "wasting police time" law as the UK?

    It seems to me that's what he was guilty of really – the police had to investigate but he was no real threat so he wasted their time.

    Building a fence around the Torah, so that one not only does not commit crimes, but one also doesn't do anything that's near to a crime seems like a perfectly reasonable way to structure a religion.

    …but it's a terrible way to structure the State.

    I note that this is hardly the first time that the State has both declared something illegal and then declared things near it illegal. For example, in the US not only is it illegal to do a cash transaction of $10k with out telling the government about it, but it's also illegal to do two $5k transactions without telling the government if your intent is to obey the bright line letter of the law.

    (I note via proof by induction that cash transactions of one penny are likewise illegal).

    Laws that require the citizen to act as his own jailer are utterly repugnant to any free man or woman.

  34. En Passant says

    lelnet wrote Aug 21, 2013 @2:21 pm:

    I don't know if "En Passant" numbers me _personally_ among "the sadistic, the craven and the irresponsible", or merely among their enablers. It is more than clear that he considers me "irrational". Even if it eventually turns out that I was incorrect, I still object to being characterized in such terms as those.

    No, I don't number you among such.

    I merely pointed out that by jumping to a (by now demonstrably false) conclusion about the meaning of some words without sufficiently accounting their context, you displayed the same human tendency that has horrific consequences when those in positions of far more power than accountability engage in it.

    We are all human, so we sometimes err. But that particular type of error has come to prominence these days because of consequences like those which injured Mr. Clemmons.

    Yes, I think the error is due to a type of irrationality. No, I don't deny that I've made it myself, though I make some efforts to avoid it as I'm sure you do as well. But many don't make those efforts. That is a sad and disturbing fact.

    When I do it or you do it, the consequence for those whose words are taken wrongly is usually merely temporary undeserved butthurt or annoyance at most. And at times they might even take us to task for the error, thereby inflicting some butthurt in return.

    But most important, when those with the full force of government authority make the same error, they inflict far more. They inflict genuine injury, loss of freedom, or worse. Their targets don't usually have the means to take them to task.

    Yes, I think that those with government authority tend to draw such erroneous conclusions more readily because they suffer little or no consequence for their error. I also think that uncorrected errors lead to more errors, and the next target of such error by authorities might be me, or you.

    That is why I think that we ignore the error at our peril.

  35. mud man says

    I think Clark's remark about things that are near to being bad things are nearly as bad cuts to much that is wrong these days. Eg, it's permissible (on its face) for cops to shoot at people who are shooting at them. Argyle, if someone is reaching for something, they might be reaching for a gun with which to shoot, so it's reasonable for the cop to shoot them. Hence, if the person is doing something that looks like it might be a reaching gesture, the cop has a duty to shoot them.

    Ultimately, as we were remarking the other day, everyone is a terror suspect who should be shot on sight.

  36. bob says

    NI: I agree that not only were those people far more evil but they were also far more decisive and the practical reality is that because of those incidents law enforcement cannot selectively decide which threat to ignore and which threat to investigate.

  37. Tarrou says

    I don't think he should have been convicted, but I'd like to register my extreme displeasure at every sophomoric juvenile prank being excused as an "art project". You aren't an artist, you're a punk, get over yourself.

  38. NI says

    Bob:

    "I agree that not only were those people far more evil but they were also far more decisive and the practical reality is that because of those incidents law enforcement cannot selectively decide which threat to ignore and which threat to investigate."

    I have no issue with the police investigating; I do have a problem with criminal charges being brought, and made to stick, after the police have figured out that there was no real threat. Surely after they actually took a good look at it, somebody figured out that this guy posed no real threat and was merely a jackass shooting off his mouth. At that point he should have been cut loose.

  39. Basil Forthrightly says

    On the subject of not making bail, while poverty seems far the most likely reason here, there are plenty of situations where families decline to bail out a kid even though they have the means.

    In some cases, the parents believe the allegation and are intolerant of it or embarrassed by it – law-and-order types in the shorthand of stereotypes – and "punish" their kid by not bailing them, even on a first arrest.

    In some cases, parents have had enough – the kid has been in lots of trouble before, has been bailed several times, and the parents are done. I saw this with my step-brother; on his fifth arrest one summer (drugs, drugs, leaving the scene of an accident, ditto, shoplifting needles) my parents declined to bail him. He'd been warned they were done bailing him. His father also declined to bail him, but paid for top lawyering and had political stroke enough to get his son to the top of the docket, tried and assigned to a treatment program after a week in jail.

    I'd also argue that the heavy sentence is probably in part an effect of poverty and perhaps a public defender; better lawyering probably could have made a difference.

  40. George Turner says

    I would throw him in jail for a decade without blinking an eye. Irritating artists are irritating. Do we want to see this nation overrun with mimes, unicyclists, and other nonsense we shouldn't tolerate? No, we don't, and this artists was just trying to find his niche – like a blood sucking tick or mosquito. Frankly, society would be well served is such artists met with a bad end in prison.

  41. rsteinmetz70112 says

    Ken,

    IANAL but I think a plain reading of the statute is at variance with your analysis.

    The statute says:

    A person commits the offense of a terroristic threat when he or she threatens to commit

    I don't see where intent to comes into it, merely making the threat in a credible way ( i. e. dumbbass, not explicitly humor or commentary or satire) seems to satisfy the stature. This is similar to your "reckless to the risk". Recklessness may be in the eye of the beholder.

    I read the statute to say that he has to intend to cause terror OR intend to cause evacuation or serious inconvenience OR be reckless of the risk of causing the same.

    But then I am not a lawyer. Maybe dumbass should be a crime.

  42. 205guy says

    I'm really surprised by all the comments here. Maybe we're missing some key information, but so far, the only comment we have from the guy himself (after the fact and while subject to its legal consequences) is that it was "an experimental literary piece and an art project." Note that this attitude is corroberated by his initial statement: "to see the affect it has. to see if i get arrested."

    Taking this at face value, he is rather bravely taking responsibility for his actions and the consequences thereof. It doesn't matter to his project what happens to him, whether it's fair or not, just that it happens. He literally put his own life and criminal record on the line to see what happens when you do what he did. NI wrote: "At this point in time, it's entirely predictable that somebody who posts what Clemmons posted …" I think he has just proved that nothing is entirely predictable. I suspect that that is one of his points in doing this "art."

    So in my mind, he doesn't want your sympathy, your outrage, your activism, your legal analysis, your should've-used-this-defense opinion, or your pointed commentary. Or rather he does want them … for his project. Personally, I think it is rather brilliant. The grittiness and ambiguity of our laws and legal system as art or performance art. Action-consequence, predictable or not.

  43. says

    I feel little sympathy for Caleb Clemmons, but I still see his punishment as unjust and unhelpful. Caleb's actions are the equivalent of shouting "Fire" in an empty theater: making threatening actions in a non-threatening context. The response of the police and judge was totally predictable, and wrong.

    Given that, as others before me pointed out, the school did not react to the "threat", and that there appears to be no evidence of intent or capability to make good on the threat, the only people who took this nonsense seriously were the cops. Our "public servants" spent time and money and deprived a citizen of liberty, and we are not any safer or freer. A travesty and a waste.

  44. bob says

    NI: Fair enough. There's a difference between investigating and prosecuting and if the system could prosecute stupidity the roads would be a lot safer.

  45. V says

    @rsteinmetz70112
    You left out "with the purpose of terrorizing another" from your statute quote. Ken (and whoever he quoted it from) backs up that "with the purpose of terrorizing" applies to "threatens to commit" with some cases where the statute was interpreted as such.

  46. Sacho says


    I found data that 1,055 explosive devices were found in schools from 1990-2002, and the schools received advance threats in 14 of those cases.

    This statistic(although missing the number of advance threats, I'm fairly sure it's much, much higher) seems to show that it is entirely irrational to think that an advance threat is anything but baseless. At best, the rational response should be to fine him for trying to waste police time with an investigation.

    I think the response was absolutely ridiculous, and can't quite square how anyone posting here can comment otherwise. Maybe it's because I'm not from the US and have generally been shielded from terrorist happenings, but to me, the complacency shown with "Well he should have known that's how the government would react!" is dumbfounding. That is simply *NOT* how the government actors should have reacted. There's no basis to this reaction in reality(an advance threat is very, very rarely serious), Ken didn't mention any aggravating circumstances in his post(like the guy having past convictions, testimony that he regularly causes trouble, psychiatric evaluation showing he's unstable…).

    Ridiculous.

  47. says

    What surprises me is that Georgia Southern didn't find out about the threat and place the school in lockdown until he was arrested. To me, that would be an expected (though not rational or appropriate) response to the post. On that basis one could conclude that he had reckless disregard for the terror of the GSU students.

    Also surprised that someone who could afford college (I know, he may not have been paying himself) could not come up with $2000 that I assume a bail bondsman would require for the entire 6 months he was in jail.

  48. says

    The only person who can possibly know for _sure_ what he meant is still around, and free to clarify. Maybe I was right, or maybe I was wrong. I tend to suspect the former, but accept that the latter is a possibility.

    We can reasonably guess what he meant (in fact, I wasn't guessing; I was basing my "interpretation" of having known and observed Ken in this space since 2000 or 2001). I was not addressing your initial interpretation (this medium of communication is less rich than others and carries with it a greater chance of losing some or all of a message; it is what it is), but rather your doubling down. You got lost in the woods on that one.

  49. bus says

    If this was a true 'social experiment' or some other buzzword crap like that, perhaps he should have consulted with an attorney first, undergone some psych evaluations, and made a notarized and witnessed statement to be revelead at a later date. Something like "My name is Caleb, and I am conducting an experiement. I intend to use this research to _____. On the specified day of March xx, 2013, at xx:xxAM, I will be using the following account on the following website, to post the following message: ___"

    I am not saying that this should be a Get Out of Jail card, and hopefully the atty would say This is Idiotic and try to dissuade him. But at least there would be a paper trail and some semblance of a real experiment. This could possibly be used to prove innocent intent, as long as you know, he didnt have guns and ammo and bomb materials and hate literature and… Might still get a slap or other punishment and deserve it

    But what do I know? In the eyes of the Lordaw, a threat might just be a threat regardless of intention

  50. Ryan says

    It disturbs me a little that some commenters are taking task with the police for bringing charges in the first place.

    While – as I said earlier – I have an issue with the sentencing (and possibly the conviction, my mind is not made up there), there is nothing wrong with the arrest, an investigation, and charges being brought.

    The police are charged with the responsibility to investigate alleged offences and bring charges where the evidence supports, on reasonable grounds, that an accused broke the law. There is ample evidence that the accused in this case did indeed conduct himself in a way that broke the law.

    The responsibility of the court – and its agents; prosecutor, defense, judge, etc – is to determine if an accused is guilty, and what extent of penal liability for any guilt exists.

    In this circumstance, the crime is making a thread; not necessarily having the means to carry it out. Charges were appropriate. Where the system failed Clemmons was at the level of the court – a conviction may not have been appropriate, and the sentence definitely wasn't.

    If there is anyone the commenters should be taking to task, it is the judge who convicted and sentenced, not the police who merely charged.

  51. Ryan says

    *Note: It occurs to me that some people may point out that the plea was guilty in this case and that the judge did not actually convict Clemmons. My point is that there may be good reason said plea should not have been accepted, and in that sense the judge did "convict" Clemmons.

  52. lucusloc says

    See, I took that tweet to mean "I am going to say some thing threatening and stupid, then follow with a disclaimer that I am not serious and it is an experiment to see if there are people in the government stupid enough to take me serious even with the context of this disclaimer, despite the fact that most resonating people can see that I am not serious and understand that I am testing the intelligence of the government"

    I think he found the answer to that question is "yes"

  53. mcinsand says

    Tarrou is on the right path. I remember my sociology professor discussing experiments she participated in, and they were generally out-of-the-norm behaviors with an observer stationed to record responses. One example she cited was to go to a restaurant alone, request a table for two, order for two, and spend an hour or two acting as if she was talking to someone sitting in the empty chair. A colleague was positioned elsewhere in the restaurant to note responses. Another was for a man and woman to go out, but for both to cross-dress… usually in nice clothes to make the difference more obvious.

    Those are social experiments, where researchers will test the elasticity of responses to unanticipated behavior. Let's just say that this was an honest (but stupid) attempt at such an experiment, Mr. Clemmons' planning and execution would no doubt have earned an F for the project. As posted elsewhere, checking with an attorney on anything that might be remotely-perceived as threatening is a must. For something like this, not consulting law enforcement was so jarringly stupid that he has no business in higher education.

    As with any other experiment, a competent researcher will make a reasonable effort to plan for things to go wrong, commensurate with what is under testing. If you're going to test something like epoxy polymerization, a hood, safety glasses, and gloves will probably be adequate. I'm talking about using the prepolymers that we buy at the hardware store. On the other hand, if we are going to do something like heat a teaspoon of picric acid on a watch glass over a flame, we're going to need far more protection and preparation.

    For the dinner experiment where Dr. Burgess was eating alone, worst case is that someone calls for some mental health professionals, but she had cohorts to vouch for her. This dude was experimenting with threats of violence (disclaimer or not), without even doing as much preparation.

    The police truly had no choice in filing charges, although we can debate on the outcome endlessly. Even with a disclaimer, the risk was too high to blow off, and that is from multiple directions. What if Mr. Clemmons was a threat hiding behind a misdirecting disclaimer? What if the police don't take it seriously and then others start to copy, thus burying any real signals below a new noise floor?

  54. AlphaCentauri says

    Any legitimate experiment involving human subjects would have to be approved by an institutional review board of some sort. This would never have passed. There are way too many foreseeable ways that it could go wrong. The noise floor is already pretty high, and students routinely hide in their dorm rooms to avoid having to evacuate for bomb threats and false fire alarms. Combine that with armed bomb squad cops searching the building and there is a real chance of injury.

  55. En Passant says

    AlphaCentauri wrote Aug 22, 2013 @4:05 pm:

    Any legitimate experiment involving human subjects would have to be approved by an institutional review board of some sort. This would never have passed. …

    If all experiments with human subjects is forbidden without approval by an institutional review board, those nice ladies in supermarkets who hand out free samples of crackers and cheese and ask you if you like the product are in a heap of trouble.

    We have allowed certain extremely rare events (school shootings by crazy people and similar horrors) drive us to permit those we authorize to enforce law to be so sensitive that they now arrest and prosecute anybody who says something they don't like. The authorities only have to say they are afraid.

    If somebody says "I'm going out and getting drunk", and they own a car, maybe they should be peremptorily arrested because they might drive drunk and kill a busload of people. We're coming to that.

    We have become a society of nervous fools, afraid of shadows.

    Mcinsand's mention of picric acid above recalls for me an event for which statutes of limitations are long past, and the perpetrators are all dead. So I suppose it is safe to relate it without fear of arrest, since I was not present. It is a good benchmark for comparison.

    One of my uncles, now as deceased as the rest of my uncles, was a chemistry student in the 1920s. He and his classmates decided to play a trick on their professor. They made a small gob of NI3 – easy enough to do.

    Their professor was fond of sitting in a rocking chair in the classroom during recitation. When he sat down in the rocking chair, the runners blew off, with gusto.

    Professor was annoyed, but a good laugh was had by all. He knew his students had learned something.

    Nobody was arrested, or even sent to the Dean's office.

    Today, every student in that class would likely be behind bars with felony convictions.

    That's how far down the road to totalitarianism we have come. We are afraid of mere shadows. We are authorizing government to imprison anybody some overzealous official counting coup for promotion wants to arrest. Because we hope that will make the shadows go away.

    But most of the shadows are in our minds. No prosecutions can remove them.

  56. Anony Mouse says

    Seems the reasonable solution is to finally erase the cesspit that is Tumblr from the internet. *nods*

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