True Threats v. Protected Speech, Post-Election Edition

So. Thank goodness everyone seems to be going about this really calmly.

Dateline: Rutgers. Kevin Allred, a professor of Beyoncé Studies, is not taking recent news philosophically. In the course of a rant he offers these:

runoffroad2ndamendment

Days later, the NYPD shows up at his home and hauls him off to Bellvue for a psychiatric evaluation.

Analysis of when law enforcement can detain you and forcibly commit you for psychiatric evaluation is complicated and beyond the scope of this post. Let's look at the easier question: were those tweets illegal threats, or protected by the First Amendment?

The answer: they're probably protected speech. Remember, only "true threats" are outside the scope of First Amendment protection. A statement is only a "true threat" if a reasonable person would interpret the words, in their context, as an expression of actual intent to do harm. In addition, the speaker must either intend that the words be taken as a statement of intent to do harm, or at least must be reckless about whether or not they would be interpreted that way (that's still a bit up in the air, legally).

Here, the context is a tweet rant by a Rutgers professor. The Second Amendment tweet is part of a rant about gun control, and the bumper sticker tweet is part of an attack of intellectual and emotional incontinence about Trump. Neither threatens a specific target and both sound figurative and hyperbolic. So: the government probably can't satisfy the objective test (that a reasonable person would read these as sincere threats), let alone the subjective test (what he intended). It's likely protected by the First Amendment. Legally.

Practically, this sort of thing will get you arrested, if someone happens to catch a cop's attention with it. Stuff that is far more clearly satirical results in arrest and prosecution all of the time. Usually the people arrested are a lot less privileged than a Rutgers professor, and it's much easier to be arrested if you say something mean about police officers. But these tweets were close enough to the line (especially read out of context, as cops tend to read such things in the heat of the moment) that an arrest isn't surprising. You might even wind up having to take a case like this to trial if you get charged. Allred's threatening to sue — but if it's on the theory that his speech was protected, he'll probably lose, because the speech is close enough to the line that the cops are likely protected by qualified immunity even if a judge agrees that the tweets were only hyperbole.

I think that the tweets should be protected, embedded as they are in a figurative expression of rage. But Allred's an asshole. If I were one of his co-workers, or students, I would be a little worried about being around him, because I wouldn't be sure that these are hyperbole. If I were his employer, I'd spend the whole day dealing with the fallout and trying to weigh risk and liability and the fears of other employees.

(The flip side is that far worse stuff gets said online all the time without anyone taking action — because law enforcement is arbitrary and capricious.)

Dateline: San Diego. Matt Harrigan, founder of PacketSled, is nonplussed:

holdmybeer

This ends with Harrigan resigning his position and, I suspect, waiting for a visit from the Secret Service.

This, too, was likely protected speech. As I explained in 2012 when jackasses were incensed over Obama's reelection, threats against a President or President-elect are subject to a true threats analysis as well. Under the federal statute prohibiting such threats, there are two questions: (1) would the statement be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure the official? and (2) did the defendant intend that the statement be understood as a threat?

Here, Harrigan was talking to Facebook followers, and the statements were part of a stream of rage. Despite the fact that he offered details about how he would kill President-Elect Trump, given the context and audience reasonable people probably wouldn't take this as a genuine statement of intent to do harm, and it would be difficult to prove he meant it that way. People familiar with the context would likely interpret it as the venting of someone who is accustomed to getting his way suddenly being thwarted. Therefore it's likely protected by the First Amendment, and because it's part of hyperbole, ought to be. But it's damned close to the line.

Once again, this sort of outburst gets people arrested all the time. Sometimes it gets people charged. Sometimes it results in convictions. Harrigan is well-positioned to skate because he's an affluent white techbro on Facebook. If you're a disturbed jobless nobody or a prisoner, you may get convicted, even though objective analysis ought to suggest that your rant is even more impotent and unlikely than Harrigan's. "Reasonable person" analysis tends to discredit threats from people like Harrigan and Allred and credit threats from people who are offensively dark, poor, incarcerated, or unbalanced in a way that does not lead to tenure. That's the way the system works. Sorry, no refunds.

Last 5 posts by Ken White

Comments

  1. Southern Radical says

    My favorite part about this anger thread on twitter are the people outraged over the police doing what they were a few months ago asking them to do to other tweeters.

    Like, I get it, it's "hyperbole", but the other side is always serious about it. Yes sir.

  2. Total says

    reasonable people probably wouldn't take this as a genuine statement of intent to do harm

    Uh, I think of myself as reasonable people and those absolutely sound like genuine threats.

  3. Erik says

    Good grief. I though that "professor of Beyoncé Studies" was a snark, and then I clicked the link. And this is at Rutgers. Ivy League academia as officially transcended satire. This has to be a sign of the apocalypse. FML. SMH. BYOB.

  4. Matthew Cline says

    @Total:

    Uh, I think of myself as reasonable people and those absolutely sound like genuine threats.

    With no context, yes. In the context of someone venting on ranting on Twitter, not so much.

  5. Shosei says

    @Erik: See, I just don't get this. Is there a reason why a modern performer – particularly one as widely popular and therefore influential as Beyoncé – is less befitting of study than, say, Keats, Milton, or Joyce? "Beyoncé studies" is a bit specific to have as a title, but it's hardly uncommon for literature and other liberal arts professors to specialize in a single artist.

    Modern American culture may be often lowbrow, but so was Shakespeare – and a whole lot more people living today have listened to Single Ladies than have read or seen a performance of King Lear.

    American culture is the most dominant culture in the history of the planet, influencing likely billions of people, and Beyoncé is one of the most popular artists of the past two decades. I don't see why that's out of bounds for scholarly study. (Even if "professor of Beyoncé studies" is a ridiculous sounding title.)

  6. Gary Tyrrell says

    @Erik

    Rutgers isn't Ivy; it's just old. An Ivy wouldn't spend as much of my tax dollars on trying to compete in a football division it has no business being in (approximately $750 million over 30 years).

  7. Noscitur a sociis says

    And this is at Rutgers. Ivy League academia as officially transcended satire.

    Rutgers isn't in the Ivy League.

  8. Morrowind542 says

    Shosei,

    I would say that that difference is that older artists have withstood the test of time, and that we can look back on their work with some perspective. Beyoncé could wind up completely worthy of study, and may be considered one of the defining artists of our time; or she may end up a flash in the pan, relatively speaking.

    We don't, and can't, know yet, and to me at least, it seems like some people are trying to force that relevance because the political message she's trying to send lines up with their political views. It also feels kinda gimmicky, like when that one college had a course on Norse mythology in Skyrim(which I'm playing as I write, as it happens)

  9. En Passant says

    Perhaps the key to avoiding prosecution is to craft the words so that the argument they are a true threat would put a jury to sleep.

    The professor should have stopped with "my brakes will go out".

  10. Total says

    With no context, yes. In the context of someone venting on ranting on Twitter, not so much.

    No, still sounds like a genuine threat to me, thanks!

    Also — Rutgers Ivy? Get a clue.

  11. Ed says

    Question: can a student of delicate construction demand trigger warnings if this professor is roaming the campus? Can not his very existence be viewed as being a threat to the mental well being of the student body?

  12. Tom Scharf says

    People who genuinely plan to shoot the POTUS wouldn't generally announce it on Facebook or Twitter first. It would be interesting to know which elections cause the most death threats from people with poor impulse control.

    I'm having a hard time imagining what a professor of Beyoncé Studies does all day, and a much harder time understanding why the taxpayers are funding it. I wonder how many of these there are? Do they have their own conferences and journals?

  13. says

    I am for some reason reminded of a quote from a rather curmudgeonly article by C. S. Lewis:

    The Elderly Lady, if she read this article, would say I was “threatening” – linguistic nicety not being much in her line. If by a threat you mean (but then you don’t know much English) the conjectural prediction of a highly undesirable event, then I threaten. But if by the word threat you imply that I wish for such a result or would willingly contribute to
    it, then you are wrong. Revolutions seldom cure the evil against which they are directed; they always beget a hundred others. Often they perpetuate the old eviI under a new name.

  14. somebody says

    I wonder how much of it comes down to the tweeter's history/reputation. For instance, when someone like Chris-Chan tweets out a rather emotional plea for someone to take a sniper rifle and rid the world of Trump, someone reviewing Chris-Chan's history might conclude that they're deranged enough to mean it sincerely.

  15. OrderoftheQuaff says

    No sympathy for either the Allred or the Harrington fool. That's what they call a teachable moment or a learning opportunity, depending on which side you're on. Professor in Beyonce' Studies you say? Wait till you see the college-level course I'm developing, which integrates Russian folklore, Lady Gaga and the Trump election…

    BABA YAGA GAGA MAGA!

  16. Friendly Neighborhood Zionist Boogeyman says

    Ken, just a minor correctiom: he's not a professor, he's an adjunct lecturer.

    As the child of someone who worked her way from adjunct to Assistant Teaching Professor (still non-tenure-track since it's a research University that doesn't really give a shit about undergraduate education) at Rutgers, I can say that the difference between professor and adjunct is quite significant.

    @OrderoftheQuaff: I have no sympathy for either of them either, but their speech is (or should be) protected anyway.

  17. Fasolt says

    From Mr. Allred's Webpage:

    "Politicizing Beyoncé" is an interdisciplinary college course, created by Kevin Allred, that attempts to think through contemporary U.S. society and its current gender, race, class, and sexual politics by analyzing the music and career of Beyoncé Giselle Knowles Carter. The course was created by Kevin Allred and first taught in 2010. It's currently being offered at Rutgers University and travels worldwide for special engagements and events.

    Bold emphasis is mine. It travels worldwide for special engagements and events? How long is that class? Looks like a one night deal based on the flyer pictured here.

    Shouldn't he try to at least milk that for a semester?

  18. Encinal says

    There's also the fact that he specifies white (is he not white?) That makes it hate speech. While the state as government can't punish him for it, the state as employer absolutely can. If he doesn't have tenure, there's no excuse for him to still be employed by Rutgers next year.

    Under the federal statute prohibiting such threats, there are two questions: (1) would the statement be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure the official?

    How is that a threat? A threat is, by definition, directed against the target. My hearing that someone is going to kill the president isn't a threat. Why would I feel threatened by that? It's only a threat if the president hears it, and the president reads it as a serious expression of an intent to kill or injure.

    @Jim Tyre

    Damn you, Ken. I was really hoping that you were kidding about a Professor of Beyonce studies.

    He was either kidding or being dishonest. Teacher one class in something doesn't make you a professor of it.

    @Gary Tyrrell

    An Ivy wouldn't spend as much of my tax dollars on trying to compete in a football division it has no business being in (approximately $750 million over 30 years

    An Ivy league wouldn't be spending public money at all; they're private schools.

  19. ELSuerte says

    This sounds like a psychiatric hold issue, rather than a true threat crime issue. Do the same first amendment protections apply?

    FWIW: According to the article, he was ranting in the classroom about killing white people. I'm not sure how much it changes the calculus.

    But the NYPD said campus cops in New Brunswick, N.J., asked them to conduct “a wellness check … on the professor based on comments he made in the classroom and on Twitter about killing white people.

  20. Pickwick says

    Donald Trump is a contemptible, mercurial, pig-ignorant grifter whose election will make almost all of us less safe and less prosperous. People who voted for him are either deplorable in their views or are, themselves, ignorant or misinformed. And blustering about killing him or them–let alone actually doing it–makes the world a worse place. God damn, but that last shouldn't have to be said.

    When you start to get specific about means, rather than just issuing an airy statement that you're going to kill someone, I'm more likely to interpret that as a true threat, as a juror. Even when issued online. Most people who broadcast intent online probably don't go on to act on it, but the more thought you've put into it, the more likely you are to act on an idea, it seems to me.

    Of course, I'm pig-ignorant when it comes to law. I've no idea if a panel of jurors would be called upon to decide that.

  21. M B says

    Huh, the "wonder what the 2nd Amendment folk will think" tweet, sure, that could be passed off as hyperbole and a rhetorical question. But "if I see any Trump bumper stickers I'll run their cars off the road" seems pretty straightforward to me. I'd say that could reasonably be construed as a threat against people who have Trump stickers.

  22. Agammamon says

    M B says

    November 17, 2016 at 4:16 am

    Except that I think something very similar has already been litigated and found not to be a 'true threat' *specifically* because of both the context in which is was said and the conditional added.

    Watts v United States

    "Petitioner's remark during political debate at small public gathering that if inducted into Army (which he vowed would never occur) and made to carry a rifle "the first man I want to get in my sights is L. B. J.," held to be crude political hyperbole which in light of its context and conditional nature did not constitute a knowing and willful threat against the President within the coverage of 18 U.S.C. 871 (a). "

    http://caselaw.findlaw.com/us-supreme-court/394/705.html

  23. william the stout says

    I yearn for a simpler time when everybody was terrified of (and threatening to arrest/kill) clowns. My fellow citizens just seemed so much more rational back then.

  24. Cactus says

    @Tom Scharf

    People who genuinely plan to shoot the POTUS wouldn't generally announce it on Facebook or Twitter first.

    Just popping in to point out that people can use social media differently to you
    http://ktla.com/2016/08/22/arizona-man-arrested-accused-of-murdering-roommate-two-days-after-chilling-tweet/

    But even still, I wouldn't take it as a true threat, if a liberal arts type was to assassinate anyone it'd be Pence.

    EDIT – In before we get woodchippered like Reason.

  25. Dorothy M. says

    During the weeks leading up to the election, Donald Trump called for the Russians to hack and release information on Hillary Clinton. He also suggested that someone shoot her as I remember. Then he dismissed it all as "sarcasm." I don't get it. it seemed clear to me that he was inciting an act of cyber terrorism and an act of violence. I was shocked at the time and really thought something would be done quickly by the NSA at least.

  26. Horkthane says

    So, out of curiosity, what would Matt Harrigan have to have done to raise his speech to the legal level of a true threat? Because, to me, being a layman, if that's not a true threat, I'm not sure what is.

  27. AH says

    "So, out of curiosity, what would Matt Harrigan have to have done to raise his speech to the legal level of a true threat? Because, to me, being a layman, if that's not a true threat, I'm not sure what is."

    Post a picture of the gun? A video of him loading it and chambering a round? The plane ticket to DC?

    Frankly, I don't know. I have a hard time coming up with something that is more-threat-like then that either.

  28. Horkthane says

    Frankly, I don't know. I have a hard time coming up with something that is more-threat-like then that either.

    If nothing else, it deserves the secret service checking to see if he's purchased a gun recently, or arranged any travel plans to DC.

    It's easy to say "In this personal context of him posting among friends…", but there is also the greater societal context of ongoing protest/riots/civil unrest, and a daily roll of news stories about Hillary supporters sending Trump supporters to the hospital and vice versa. Shit is getting real in a very uncomfortable way, and I'm not sure dismissing graphic and detailed death threats as mere jokes or venting is as accurate a judge of the future as it used to be.

  29. rsteinmetz70112 says

    I don't think Trump's comment about "Second Amendment folks" comes anywhere near being a threat much less a true threat. It was is at least ambiguous. Equating it to a threat is hyperbole.

    The mention of the adjunct professor making comments in his classroom presents the possibility that someone witnessed him acting erratically and reported it.

  30. says

    So, out of curiosity, what would Matt Harrigan have to have done to raise his speech to the legal level of a true threat? Because, to me, being a layman, if that's not a true threat, I'm not sure what is.

    Good question.

    I think if he posted the threats on their own, without the context of the rant, it would be a much closer case. Similarly, if he posted it to a different crowd (not his Facebook followers commiserating with him, but on a forum someplace where he was a stranger) it would be closer to a threat.

  31. Horkthane says

    I think if he posted the threats on their own, without the context of the rant, it would be a much closer case. Similarly, if he posted it to a different crowd (not his Facebook followers commiserating with him, but on a forum someplace where he was a stranger) it would be closer to a threat.

    So, legal philosophy question. How does current legal theory weigh free speech of the speaker against the loss of freedom of movement (or liberty broadly) of the target of these almost credible death threats? Especially against a background of many clearly credible death threats. People are getting hospitalized and just recently murdered for how they voted.

    For a threat to be actionable by the law, does the threatener need to actually intent to carry it out, or merely desire to have the target believe they will? Does a background of civil unrest and violence alter that measure at all, since threats become more believable if people are clearly out there following through on them already?

  32. Thomas Jones says

    Sorry, but "I'll run you off the road if I see you" sounds exactly like a threat. If he later did run somebody off the road and kill them, then the cops would have been derelict in their duties.

  33. says

    @Horkthane: there is no requirement that the threatener intend to carry out the threat. Whether the threatener appears to have the capacity to may be a factor in the objective analysis.

  34. Horkthane says

    @Horkthane: there is no requirement that the threatener intend to carry out the threat. Whether the threatener appears to have the capacity to may be a factor in the objective analysis.

    So, follow up question.

    If there is no requirement that the threatener intend to carry out the threat, why is his capacity to a factor? Does it go to how believable the threat seemed to the target?

    If the threat is "I'm going to use my sniper rifle to kill you" and you don't own a sniper rifle, you don't have the capacity to follow through. But if the threat is "I'm going to buy a sniper rifle and kill you" and you do in fact have the cash on hand to purchase a sniper rifle, is that sufficient to say they have the capacity to follow through on the threat?

  35. says

    @Horkthane: Exactly, present capacity is relevant to the objective analysis of whether a reasonable person would take it as a genuine statement of intent to do harm. "I will kick your ass" on Twitter very different than in person face-to-face.

  36. Yourself says

    I noticed in the linked 2012 Obama post, the statements held by federal courts to be true threats (US v Fuller and US v Lockheart) were very similar to Harrigan's (if anything they're LESS explicit), but both occurred in personal letters. That's not something I really considered at first since the line between personal communication and public bluster on social media (particularly Facebook) is so blurred. Is there even a way to draw that line in this context?

  37. NickM says

    Horkthane – one of Ken's partners recently won a "true threats" case where one of the statements at issue was about a "Fat Man gadget". Being that it's part of a WWII nuclear weapon and is not exactly something you can just buy or make at home, the lack of capacity to carry out such a "threat" has to matter.

    If I rant about siccing my Minotaur on someone, would anyone have cause to worry?

  38. GuestPoster says

    For those dreadfully worried about the waste of tax money that they consider Beyonce Studies to be (or more particularly for those worried about the focus area of ANY college faculty), and how that shapes day-to-day operations:

    The average professor teaches 2-4 course sections a semester, depending on seniority and all that. Most of them will be low level courses, for freshman and sophomores, which nobody wants to teach but need to get taught anyways. A Professor of Beyonce Studies is exactly as capable of teaching such courses as a Professor of Shakespearian literature, for instance – the only real difference between them will be delivery and maybe one half of one lecture that semester that will deal in their personal area of study rather than somebody else's.

    They will teach one upper level, but still routine, course as well – something only juniors and seniors in the major will care to take. But, again, it doesn't matter THAT terribly much who teaches it, though at this point the course is focused enough that they'll try to get a prof. closer to the focus area (eg: a musical history course would want Mr. Beyonce Studies, while a literature course would want Mr. Shakespeare studies).

    Once every year, or every two years, the prof will offer their high level course on their personal favorite area. This will, again, be about a quarter to a fifth of their total teaching load, unless they have tremendous clout in the department and somehow escape teaching lower level courses entirely.

    In terms of research, sure, they are pursuing their pet project, along with grad students and postdocs perhaps, but this is generally funded via grants – they have to compete with others in other minimally related areas and demonstrate to an expert panel that their personal research is worth pursuing.

    Finally, if "Professor of Beyonce Studies" really bothers you, just replace it with "Professor of Popular Culture Studies" in your head – a generally well respected field that's been around essentially forever in which academics try to understand what in the world makes kids like skateboards, funny shirts, Beavis and Butthead, Harry Potter, snap wristbands, or whatever else is making life miserable for parents those days.

  39. BadRoad says

    So, is social media so steeped in vitriol, hyperbole, and sarcasm that it's impossible to use it to issue threats?

  40. En Passant says

    The professor of Beyonce studies was really just a snarky throwaway line.

    Proving once again the power of teh intarwebz to turn the slightest offhand remark into an epidemic of whooshing sounds.

    It's no surprise that police with their delicate sensibilities, and the tremulous nitwits who call them in terror upon seeing some performance artist's lamely snarky remark, are similarly afflicted and frightened by those same sounds.

    The guy is a performance artist with a Beyoncé schtick, who teaches elective courses as an adjunct. He's now been terrorized and kidnapped for three days by police for making a snarky and relatively stupid but entirely harmless remark.

    It's easy to say Russia and China are worse because there he would have disappeared into a gulag forever. But "we're better than Russia and China" is infinitesimally faint praise for our governments' present recognition of that fundamental right our founders held in highest and primary esteem.

    I am thankful, and we all should be, to Ken and all the others who labor in the perpetual trench warfare against our various governments' attacks on free speech.

  41. MM says

    Too bad that Allred is only a lecturer… Thinking of him as an actual professor led to an image of a Department of Beyonce and even someone submitting a resume touting a BA in "Beyonce Studies" from Rutgers.

  42. Friendly Neighborhood Zionist Boogeyman says

    @MM: not at my alma mater, no, but I understand you could at Brown.

  43. Joe says

    I Still don't know why NYPD would go to NJ to question a man and bring him back to NY for treatment?

  44. Shosei says

    @Encinal: True for most of the Ivies, but Cornell, at least, is partially public – three of their colleges are state schools.

  45. David says

    OTOH, presumably a university instructor knows enough about the meaning of words that a truly hypothetical statement might have been "would the 2nd amendment be as cool if I buy a gun" and that "when I buy a gun" could presumably indicate actual intent.

    TSA doesn't really consider how much of a jokester someone is when they say, "look out, maybe I have a bomb!" Why should I, a possible target of Allred's rant, have to consider the context in which he tweets out what he's going to do when he buys a gun?

  46. Thter Phiel says

    Neither threatens a specific target

    If a blue-headband gang member posts a leaflet saying "I will shoot anyone wearing a red-headband who I see on my block", surely that meets the standard for a threat to a specific target?

    If I were one of his co-workers, or students, I would be a little worried about being around him, because I wouldn't be sure that these are hyperbole.

    As if they'd let anyone who didn't think exactly like him become one of his students or co-workers.

  47. markm says

    Joe: Apparently this guy lives in Brooklyn but had to cross two rivers and a state line to find a job in New Jersey. And if he's just an adjunct, I doubt it's paying enough to make up for that commute.

    Ken, I'd take the first post as a true threat, assuming he drives and owns a car. It's direct and fairly specific. He has a plan and everything needed to carry it out. The only way I could see it as clearly not a true threat is if it's part of a long stream of insane rants – and then you'd wonder why in heck Rutgers would pay him.

    The second part, no. He doesn't own a gun. He probably doesn't know where to buy one, or how to aim, or even how to load one.

  48. Sinij says

    When I am king, you will be first against the wall. I am fine with people taking this as a real threat.

  49. Raen says

    The second – really? I have to say, even in context – maybe even especially in context – that looks pretty bad.

  50. Friendly Neighborhood Zionist Boogeyman says

    @Thter Phiel:
    Can't tell if you're joking, but while Rutgers, like most universities, is pretty left-leaning overall, it has plenty of conservative students and some conservative faculty, although doubtless they're rare in the Women's and Gender Studies department. But nothing would stop a right-leaning student from taking a class with this guy.

    Sorry if you were kidding, Poe's law is really strong in critique of higher ed these days.

  51. Jackson says

    If we are being honest about the legal analysis:

    In Allred's case, I think he's walking on the line, but I'd question if those are true threats. Certainly the 2nd amendment one is not, but the first one could be. I think if the context, as implied, is a long series of angry semi-serious mostly implausible rants, it's unlikely to be a true threat, but is probably more than enough probable cause to get oneself arrested.

    In Harrigan's case, I would lawyer up and take Ken's repeated advice to shut up. He specified a method, a place, and a general time frame. Even though that was possibly hyperbolic, I don't think it's a stretch to conclude that was a true threat, or could reasonably be received as such. If Allred was on the line, Harrigan is (at a bare minimum) leaning over it.

    I would be surprised if charges were fired against Allred. I'd probably also be surprised if Allred retains his job. I would not be surprised if charges were filed against Harrigan.

  52. Bob Becker says

    Well, it seems there is not really a program of Beyone' Studies at Princeton. (That's a relief.) There's a course. And so Mr. Allred is not actually a Professor of Beyonce' Studies at Princeton, but a Professor of Wonen and Gender Studies. (Of couse he is.) Still appalling situation overall, but not quite as appalling as first it appeared to be.

  53. princessartemis says

    Mr. Allred's first twit was very much in line with creating a hostile environment, threat or not. If a guy can get a stern talking to over a pin-up, he damn well can over making it known he wants his ideological enemies run off roads so badly he might do it himself.

  54. dee nile says

    And so Mr. Allred is not actually a Professor of Beyonce' Studies at Princeton,

    He's not a professor of anything at Princeton, since he — "teaches" is probably the wrong term — let's say "draws a paycheck" at Rutgers.

  55. Narad says

    Analysis of when law enforcement can detain you and forcibly commit you for psychiatric evaluation is complicated and beyond the scope of this post.

    Aside from the part where this is up to the physicians anyway. All the cops can do is haul you to the ER. Around here, it can take several tries even when someone is clearly a danger to himself. (And nearly everybody winds up voluntary, although I've recently learned that Washington State is particularly atavistic when it comes to suicide attempts.)

  56. Rich Rostrom says

    On 11 April 1865, President Lincoln spoke impromptu from a window of the White House to a crowd celebrating Lee's surrender at Appomattox. He suggested that civil rights should be extended to the freed slaves, including suffrage for some of them.

    John Wilkes Booth was present. He went away ranting to his friends "That means votes for niggers! That will be the last speech he ever makes!"

    Would Booth's words constitute a direct threat? Why is such speech less threatening when spoken to friends or sympathizers? (As Booth's was.)

  57. joshua says

    The problem with any "reasonable person" standard is that every person thinks they're personally reasonable, rather than considering whether or not their ideas are reasonable in context.

  58. BadRoad says

    Another problem with the "reasonable person" standard is the current abundance of unreasonable people.

  59. Dictatortot says

    I keep wondering if the law will end up having to address the "reasonable person" standard–maybe heavily qualify it in ways that were once unnecessary.

    As for the Allred situation: if I were a juror, I don't think I could convict him of an illegal threat. On the other hand, his outburst seems threatening enough–even in context–that some level of law enforcement not checking him out wouldn't be due diligence. Even if you think the Bellevue eval was a bit much, I'm hard-pressed to call what happened to Allred wildly disproportionate.

  60. says

    Popehat history: we had a commenter who argued angrily and at length that the reasonable person standard in law is a violation of the Establishment Clause of the First Amendment. He called himself Establishment Clause. The internet: it's like that.

  61. Reasonable Person says

    What qualifies as the "context" of the Tweets? I mean, given that there were a lot of arrests at violent protests and at least one viral video going around of a bunch of people beating an old man and stealing a car while people are yelling about that guy being a "Trump supporter" after a minor car accident, So, let's' just agree that it's kind of hard to know what is and isn't actually hyperbole and that's a sad reflection of our society. I mean, it's not hard to go through the papers and find stories that fit the mold "crazy dude with gun kills many" and I just covered road rage over politics in a story you can find on Snopes, which lists the truth of it as "mixed" because some accounts fail to mention there was a traffic accident before the video started.

    Speaking legally, are these statements evaluated against the social context where it is sadly believable that some idiot might seriously do things like that?

  62. MafiaKirby says

    John Wilkes Booth was present. He went away ranting to his friends "That means votes for niggers! That will be the last speech he ever makes!"

    Would Booth's words constitute a direct threat? Why is such speech less threatening when spoken to friends or sympathizers? (As Booth's was.)

    Well I can certainly hardly threaten you to someone else.

    That said, while it's certainly true that Booth did end up Assassinating the president, the question one really has to ask is "How many people said that and didn't?" If it's the sort of thing that an angry person frequently says, then we can hardly call it grounds for locking someone up.

    Especially in Booth's case. He didn't even say "I'll make certain that will be the last speech he ever makes." He just said that it would be the last speech that Lincoln would ever make. Potentially, he could be predicting that there will be violence not by him.

    Perhaps grounds for some investigation, a reason to look and see if they're doing any more than ranting. But it, alone, should not be enough.

    In part a statement to one's sympathizers or friends is considered less of a threat, because audience is a part of speech. To say something like that to someone OTHER than a friend/supporter/sympathizer, would imply that you're aware of that and are thus intending to say something different.

    Put it like this. Imagine I'm not a big fan of our new president (I'm not, so your imagination should not be much stretched.) If I were speaking to my friends, over a game of Mahjong, and said "Someone oughta blow that guy's head off," (Which I wouldn't, because I am not prone to using violence in expressions, but this version of me is more aggressive) that would be a very different statement than one which was made at a political meetinghouse, and that would be different from if I took a picture of myself holding a pistol pointed at a television, with plane tickets to Washington in my hand, and used that as a caption. The words may be the same, but the intent is not.

    And indeed – If I went on to assassinate Trump, then that statement to my friends could be shown as evidence I had preplanned it. It just would not, in and of itself, be criminal.

    Yes, clearly, Booth intended to assassinate Lincoln. Which was, of course, super illegal. However, to make the statement about Lincoln's assassination illegal, it would need to be made in a context to an audience that was expected to interpret it as an actual declaration of intent.

    This of course means that it's possible that someone can declare their intent to commit a crime, and then commit it, but because no-one believed them, they couldn't have been prevented from it. That's a shame. However, that is one of the prices we pay for living in a society which allows us freedom of speech. The benefits, in my mind, outweigh the price.

  63. bud says

    Very late and really tangential, but…

    A friend who's degree is from Rutgers once told me that he was grateful for the name, because "it's much more impressive than 'New Jersey State'. "

  64. Eric Atkinson says

    If I see any Jill Stein bumper stickers on the road today, I'm going to pull over and laugh my ass off.

  65. Dan says

    The average Internet SJW self-reports that they get about 100 death threats per day, all 100 of which are true threats. Since SJWs always tell the truth, that comes out to 36,500 true death threats per Internet SJW per year.

    That these courageous soldiers of truth and light survive even one week, let alone fight on year after year after year, can only be the result of divine protection.

  66. Mike B says

    I like to consider myself a reasonable person, but as someone who's experienced or witnessed multiple rather alarming road rage incidents, I would tend to take the claim of someone saying they'd do it over something so vapid and petty with some level of credibility even on twitter.

    It's not just flourish and rhetoric, but an oddly specific threat of reaction to something that quite frankly a reasonable person should expect someone ranting like that to be genuinely capable of carrying out. I've literally see cars with political bumper stickers cut off and brake check each other over what looked to be nothing more than support of the opposition, and I'm taking anyone seriously who threatens to do that without an obvious context of sarcasm.

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