FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts

I've written about some pretty outrageous cases of university censorship, like Bergen Community College's idiotic crusade against Game of Thrones t-shirts or University of Wisconsin-Stout's imbecilic response to Firefly references. The Foundation for Individual Rights In Education — FIRE, the boogeyman of Alternet writers and the professionally offended — has played a major role in vindicating rights in many of those cases.

But I've never seen a FIRE case that outraged me more.

Northern Michigan University had — and perhaps still has — a policy subjecting students to discipline if they share suicidal thoughts with their peers. And they've threatened to use it.

After seeking counseling following a sexual assault, NMU student Katerina Klawes received one of these emails in March 2015, informing her that it was “important that [she] refrain from discussing these issues with other students.” An administrator clarified to Klawes in a subsequent email that she “cannot discuss with other students suicidal or self-destructive thoughts or actions.”

Words are inadequate to convey how wrong-headed, reckless, and cruel this is. FIRE's letter explains why it's a First Amendment travesty. But more compellingly than that, it's a human travesty, a sick elevation of student management over survival. As I've talked about before, reaching out to someone — anyone — can be the difference between life and death for someone suffering from severe depression. Threatening a student with discipline if they utter a cry for help to peers — who may be the only ones with whom the student feels a connection — could fatally suppress that crucial plea for help.

I'm more of a consumer of mental health expertise than a provider, so to express what a terrible idea this is I reached out to a high school classmate, Dr. Mendel Feldsher, a frighteningly well-qualified psychiatrist and clinical professor of psychiatry. Part of Mendel's work since 2002 (along with forensic and expert work) has been counselling college students at the Claremont Colleges. Here's how he put it:

A policy which prohibits college students from communicating their suicidal or self-harming thoughts with their peers promotes isolation and disconnectedness which increases the risk for suicide. The simple act of disclosing ones suicidal thinking to a friend can itself be quite therapeutic and can interrupt the crescendo of depressive cognitions which can lead a student to act on suicidal thinking. Communication with a friend is frequently the pivotal first step toward seeking help, and many students may be more willing to initially share their feelings with a friend than with a school official or therapist. Threatening disciplinary action for student to student communication regarding suicidal thinking sends the clear message, “You are an unacceptable burden to others” which is a harmful message, particularly to a student who is depressed and suicidal. The increasing prevalence of anxiety, depression, and suicidality in college students calls for increasing access to mental health services, not adding to stigma with a policy which promotes increased shame for the depressed and suicidal student. I have treated many depressed and suicidal students who would not have come to my attention but for their decision to reach out to a peer who urged them to seek treatment. I have never treated a student whose primary issue was the trauma they suffered as a result of a peer’s self-disclosure regarding their self-harm or suicidal thoughts.

This is a shockingly bad, inhumane policy. Let's hope FIRE's letter inspires NMU to renounce it quickly, clearly, and unequivocally. Even if they do, I am appalled that college administrators thought that this was a sensible or acceptable policy, and I question their suitability to work with students.

Jesse Singal has a post about this as well.

California: No, You Can't Show That Civil War Painting At A State Fair. It Has a Confederate Flag In It.

You may have seen something about this already: a California state legislator's mother was offended when she saw novelty Confederate money bearing the Confederate flag in the gift shop at the State Capitol. Naturally her son proposed a new law, now in effect, banning the State of California from displaying or selling the Confederate Flag or items bearing its image.

This raises some questions right off the bat. Why is the gift shop in the State Capitol of California selling novelty Confederate money? Why do legislators think that personal annoyances are grounds for legislation?

But the worst was yet to come: California officials, including both Department of Agriculture bureaucrats and counsel from the Attorney General's Office, decided that the law means that an artist could not show his civil war painting at the Big Fresno Fair, which allows hundreds of artists to display their work at its cultural fine arts pavilion. Why? Because the Civil War painting — like many such paintings — included an image of the Confederate flag, and so allowing an artist to display it with all the other work at the state fair would mean the state was displaying it in violation of the law.

No, really.

The artist has sued, and I wrote a column for the Los Angeles Daily Journal explaining why he should win, which you can read here (it's an authorized reprint; the web article is behind a paywall).

In a world choked with really stupid bureaucratic decisions, this one is notable for its idiocy.

What It's Like For The Client Subjected To A Bogus And Retaliatory Investigation

By day, Bob Blaskiewicz is a college professor. By night, he's a skeptical blogger, using the critical thinking skills he teaches to interrogate public quackery. He's a long-term critic of Stanislaw Burzynski, a Houston researcher famous and infamous for experimental cancer "treatments." He helps run a blog critical of Burzynski's claims. (Long-time readers of Popehat might remember that a supporter of Burzynski named Marc Stephens attempted, to the best of his modest ability, to threaten me at length with criminal investigations and legal proceedings, which generated what for better or worse became the blog's catchphrase.)

Blaskiewicz is fighting the good fight for science and skepticism over woo and those who prey upon the desperate. That has consequences. In his case, it generated a bogus and malicious report to the FBI about him. Bob describes what it was like in a post (not to mention what it was like to have to put up with me). The result was obvious and (after the fact) appropriate — the FBI determined that the "threat" was obviously not one, but speech protected by the First Amendment. It's still regrettable that bad faith retaliatory reports to law enforcement can upend people's lives. It was a privilege to help out Bob, who has a lot of insight into the client experience:

[I was learning that a big part of a defense attorney’s job is keeping their clients from hurting themselves by acting out of panic.]

Read his post, it's worth it.

Huge First Amendment Win In Federal Criminal Threats Case

[Note: frequent readers know I very rarely talk about my own current cases here, let alone my firm's cases. This blog is not affiliated with my law firm. I moderate it and write my own posts; nobody at my firm has input or approval and the firm doesn't sponsor, pay for, or otherwise support the blog. When I write here, I'm speaking for me, not for the firm where I work. Today I'm writing about one of my firm's cases because it's so central to this blog's subject.]

Today my law partner Caleb Mason scored a huge and important First Amendment win in his pro bono defense of a federal criminal threats case. You can read about it here, at my firm blog. CNN already covered the case here. In short: after a hard-fought trial a federal jury returned four not guilty verdicts and hung 8-4 for acquittal on 16 other counts in a prosecution involving our client Peter Wexler's political blog, which was rife with the sort of political hyperbole that's been common throughout American history and is now particularly common on the internet. The United States claimed that Mr. Wexler's blog posts were true threats against an FBI assistant director even though an FBI agent had already concluded that his prior almost identical posts were protected speech.

Caleb will now be asking the Court to dismiss the counts on which the jury hung. Until that's over, I won't be blogging the case in detail. But I promise it will be worth the wait. Issues to watch for: Mike Masnick of TechDirt as a kick-ass expert witness on internet culture, the post-Elonis standard for intent in criminal threats cases, whether the FBI understands memes, how many agents it takes to search a trailer home (30), and whether something called a "fat man gadget" is, in fact, a true threat.

In addition to being a kickass trial lawyer, Caleb is a very entertaining writer. People who like Popehat would like his Fourth Amendment analysis of Jay-Z's 99 Problems and the stuff he writes on our firm blog. I'm quite proud to be his partner today. He handled this pro bono, and together with attorney Marri Derby and the Federal Public Defender's office, did an excellent job. Peter Wexler — a man with no record, who volunteered at the library to teach adults to read — spent nearly a year in jail without bail because of his blog posts. As I often say here, your freedom of speech relies on lawyers like Caleb standing up.

About Trump's Mandatory-Minimums For Returning-Aliens Proposal

Last night Donald Trump said this:

On my first day in office, I am going to ask Congress to pass "Kate's Law" — named for Kate Steinle — to ensure that criminal aliens convicted of illegal entry face strong mandatory minimum sentences.

This is stupid political theater; let me tell you why. I'll begin by emphasizing that it's not, by any stretch of the imagination, a stupidity that's unique to Trump. He's just the most recent example.

I'll leave aside, for the moment, that naming laws after crime victims generally leads to bad lawmaking. Let's instead focus on the fatuity that slapping a mandatory minimum sentence on a particular crime will do anything other than signal our moral outrage about it.

Reentering1 the United States after you've been deported2 is a federal crime. The maximum sentence depends on whether you've committed crimes before deportation, and can be up to 20 years if you've been convicted of an "aggravated felony."3. The United States Sentencing Guidelines — which are used to generate a recommended sentence for the sentencing judge — calculate the sentence based on factors including the number and nature of past convictions and commonly yield ranges anywhere from a year to six years. I prosecuted these cases when I was an Assistant United States Attorney and defended them when I worked on the indigent defense panel. It's also a crime to enter the United States as an illegal alien in the first place, though that used to be prosecuted rarely. After their sentences, these defendants are transferred into immigration custody and deported.

Trump's rhetoric suggests that we can reduce crime and protect citizens by lengthening the sentences of aliens who return after deportation. This is bunk.

First of all, only a small number of aliens who return after deportation are prosecuted. That's because of resource limitations, not lack of political will or indulgence. There are far fewer federal prosecutors than state prosecutors, and far fewer federal judges than state judges. As a consequence there are a limited number of federal prosecutions. For instance, in Fiscal 2010 there were just under 70,000 federal criminal cases filed nationwide. That's for all types of federal crimes. Immigration prosecutions already take the lion's share of those. That Fiscal 2010 year, almost 30,000 of those cases were immigration-related. Many of those were illegally returning aliens, but others including alien smuggling, immigration fraud, and related issues. Compare that to 115 civil rights prosecutions, 581 official corruption prosecutions, 300 organized crime prosecutions, and 6,437 white collar crime prosecutions for fiscal 2010.

Second, immigration prosecutions have already been skyrocketing, not declining. Federal prosecutions for illegal reentry – and now for even illegal initial entry — have surged dramatically during the Obama administration. That means they take up an even greater percentage of federal prosecutions and federal prosecutorial and judicial resources.

Third, this surge in prosecutions is made possible by plea-bargaining offering shorter sentences. Illegal reentry cases are some of the simplest federal cases to prosecute: you've just got to establish the defendant's alien status, prior deportations, being found in the United States after deportation, and (these days) prior criminal record.4 For the most part prosecutors prove those things up with agents and documents from the agency now called Immigration and Customs Enforcement ("ICE"). However, there are a limited number of ICE case agents to put cases together for prosecutors, a limited of number of ICE records custodians to testify, a limited number of federal prosecutors, and a very limited number of federal judges. So jurisdictions with a high rate of illegal entries and reentries have created fast-track programs that reward very quick pleas (within a few weeks of arrest, before indictment) with reduced sentences. Those fast-track programs drive a gigantic percentage of the federal criminal docket in places like San Diego.

Even with fast-track programs in place, and even with immigration crimes taking up a very large percentage of federal criminal efforts, only a small percentage of illegally returning deportees are prosecuted criminally. A tiny percentage of first-time illegal entries face prosecution. There are no resources to do more. U.S. Attorney Offices generally create internal guidelines to determine which cases they'll prosecute. For instance, when I was a federal prosecutor in the 1990s, the Los Angeles office only prosecuted cases involving aliens with prior aggravated felonies or lots of prior deportations. Those days, the office — one of the biggest in the country — indicted about 1,200 – 1,500 cases a year total. That number is lower now. It cannot make a statistically significant impact on immigration crime.

If you add mandatory minimums to the mix, that system collapses. Defendants lose the incentive to plead guilty promptly. If they're going to face a five or ten year mandatory minimum sentence, why plead out quickly? ICE lacks the resources to marshal lots of federal cases to trial as case agents. Federal prosecutors lack the resources to prepare for trial, and try, many more immigration cases. Federal judges lack the time and courtrooms to try the cases. (There are about 2,800 federal district judges nationwide, and remember that they handle both civil and criminal cases.) Unless accompanied by a substantial increase in resources devoted to ICE, the Justice Department, and the federal judiciary, increasing time spent on immigration prosecutions means reducing time available for administrative deportations and investigations, all other criminal prosecutions, and all federal justice, civil or criminal. That's before they are convicted: the federal prison system is already overcrowded and it costs about $30,000 per inmate per year. (Convicted aliens cost at the high end of the scale because they are generally held in higher security facilities.) Prosecuting returning aliens goes up, prosecuting corrupt politicians, white collar crime (especially complex white collar crime), gun crimes, organized crime, complicated drug conspiracies, political corruption, and abusive cops goes down. Your wait for trial in federal civil cases goes way up.

I've never seen any credible evidence that more prosecutions or higher sentences deter aliens from returning after deportation. Certainly an alien with a criminal record who is sitting in federal prison is not, at that moment, returning after another deportation and committing more crimes, but the system lacks the resources to make a statistically significant impact through such incarcerations, unless you'd like to pay a lot more in taxes, which you would not. And while you are incapacitating criminal aliens through mandatory-minimum incarceration you are not using those prosecutors, judges, or jail cells to incapacitate other criminals, including domestic criminals who offend at a higher rate.

Mandatory minimums, if applied rigorously, would therefore dramatically reduce federal immigration prosecutions. Of course, they wouldn't be applied rigorously; they almost never are. Instead, the likely outcome is this: Congress would pass mandatory minimum laws covering some illegal reentries. Federal prosecutors would retain discretion of whether to charge aliens under those new statues or under existing statutes without mandatory minimums. Federal prosecutors would use that discretion the way they usually do — to coerce cooperation and guilty pleas. So the length of sentences for aliens returning after deportation wouldn't increase; there would just be more prosecutorial power and discretion and somewhat quicker pleas. The impact of the law would be the opposite of how it is sold to the public.

Mandatory minimums could work differently if accompanied by a general policy shift. If Congress passed mandatory minimums and the Department of Justice said "we're going to focus our resources on prosecuting returning aliens with past violent crimes like rape and robbery and assault and stop prosecuting aliens with past drug or property crimes," we'd be having a different discussion. But that's not going to happen, is it?

Trump's mandatory minimum proposal is crowd-pleasing bunk. It's commonplace bunk, offered by politicians of all stripes, but it's bunk all the same.

How The University of Chicago Could Have Done A Better Job Defending Free Speech

The University of Chicago made the news last week with a strongly worded letter defending academic freedom. The heart of it was this:

Our commitment to academic freedom means that we do not support so-called trigger warnings, we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with their own

Reactions were predictable. Critics of campus culture (usually, but not always, on the right) loved it; supporters of trigger warnings and safe spaces (usually, but not always, on the left) didn't.

I think it could have been better written. Here's how I would have framed the same paragraph.

Our commitment to academic freedom will govern our response to community concerns about course content and campus expression in general. The community should not expect us to require professors to give "trigger warnings," or to discipline them if they decline to do so. The community should not expect us to prohibit or "disinvite" speakers who offer controversial or offensive ideas. Members of the community should exercise their freedom of association to form groups with similar interests, goals, and values, but should not expect to transform classes or public spaces into "safe spaces" where expression they oppose is prohibited.

I like my version better for several reasons.

First, it's clearer that the University isn't telling professors how to teach their classes. It's unserious to say that you stand for academic freedom but then dictate to professors exactly how they can talk about their class content. I don't read the letter to say they are prohibiting professors from choosing to offer trigger warnings, but I think they could have been clearer. I personally find trigger warnings infantilizing in most academic circumstances, but I'm not the one teaching the class.

Second, I think my version offers a more honest and philosophically coherent approach to "safe spaces." As I have argued before, "safe spaces" are completely consistent with freedom of association when they represent a group of people coming together voluntarily to determine how they want to interact. They're a problem when people decide they have the right to intellectual manifest destiny — when they have a right to use safe spaces as a sword rather than a shield by telling others what they can say in public spaces like classes, quads, and dorms. "This club is a space for [group x]" does not threaten academic freedom or freedom of expression. "This campus/dorm/class/quad is a safe space and so this speaker/topic/speech should not be allowed" definitely is.

This is going to get me called (among other things) a pedant. Guilty, with an explanation. Pedantry on basic civic virtues is a good thing. Free speech legalism is a good thing. Rhetoric that blurs the nature of rights and encourages misunderstandings is bad — particularly when it comes from a university. If the University of Chicago believes — as many of us do — that the values of academic freedom and free speech are under assault, then it shouldn't encourage misunderstandings of those concepts just for the pleasure of rhetorically spiking the ball. If your proposition is that college kids should act like grown-ups, you can talk to them with a bit more complexity and accuracy.

Conservatives railing against "safe spaces" without nuance should remember that freedom of association — which conservatives are supposed to be fighting for — is about something very like safe spaces. You think college kids shouldn't be able to form their own "safe spaces" where they hear what they want? Fine. But remind me — why should campus Christian groups be able to control who can be officers based on sharing the groups' values? On the other hand, liberals insisting that this is all a talk-radio fabrication should take another look. The rhetoric of safe spaces is being used, widely and explicitly, as a justification for excluding contrary expression. These people — whether a small minority or not — believe that universities have an obligation to exclude views that they, subjectively, deem harmful. If you support that, you're not in favor of academic freedom or free speech.

In short, University of Chicago's letter was a little triumphalist, a little misleading, and a little too vague.

Gawker, Money, Speech, And Justice

Gawker delenda est.

Gawker has occasionally provided quality journalism and entertainment. That doesn't stop me from despising its amoral and repulsive ethos. Gawker's utter destruction produces a feeling of glee in my guts but disquiet in my heart. As I've written before, I'm not sure that the ruinous verdict against Gawker was just, I don't think that the amount of damages awarded was defensible, and I'm concerned that the result was a product of the brokenness of our legal system.

But observers seem eager to push the wrong message about that brokenness. The scary part of the story isn't that the occasional vengeful billionaire might break the system and overwhelm even a well-funded target with money. Such people exist, but getting sued by them is like getting hit by lightning. No, for most of us the scary part of the story is that our legal system is generally receptive to people abusing it to suppress speech. Money helps do that, but it's not necessary to do it. A hand-to-mouth lunatic with a dishonest contingency lawyer can ruin you and suppress your speech nearly as easily as a billionaire. Will you prevail against a malicious and frivolous defamation suit? Perhaps sooner if you're lucky enough to be in a state with a good anti-SLAPP statute. Or perhaps years later. Will you be one of the lucky handful who get pro bono help? Or will you be like almost everyone else, who has to spend tens or hundreds of thousands of dollars to protect your right to speak, or else abandon your right to speak because you can't afford to defend it?

The system isn't just broken for affluent publications targeted by billionaires. It's broken for everyone, and almost everyone else's speech is at much greater risk. Don't point to Peter Thiel as an exception. He's just a vivid and outlying expression of the rule.

Lawsplainer: No, Donald Trump's "Second Amendment" Comment Isn't Criminal

Donald Trump, against all advice and rumors of pivot, will continue to be Donald Trump. Today, at a rally, he uttered a line that some have taken as a suggestion that Hillary Clinton (or possibly judges) could or should be killed if they did not support Second Amendment rights:

At a rally here, Mr. Trump warned that it would be “a horrible day” if Mrs. Clinton were elected and got to appoint a tiebreaking Supreme Court justice.

“If she gets to pick her judges, nothing you can do, folks,” Mr. Trump said, as the crowd began to boo. He quickly added: “Although the Second Amendment people — maybe there is, I don’t know.”

Trump's staff quickly issued a press release saying that this comment was merely a reference to the vigorous political activism of Second Amendment fans, not to violence. I express no opinion about what Trump "meant": I think trying to parse his Joycean ramblings is usually pointless.

But let's say we choose to interpret this as Donald Trump suggesting that, if Clinton appoints judges hostile to the Second Amendment, she or the judges could be shot.

Is that a crime? Is it outside the protections of the First Amendment?

No, I'm confident that it isn't.

People are referring to this as a threat, but it's more like incitement. Under any interpretation Trump isn't saying he will shoot anyone; he's suggesting that someone else might — and perhaps implying that they should.

Attempts to punish incitement to violence are governed by the "clear and present danger" test articulated in Brandenburg v. Ohio. Brandenburg involved a Klan rally at which a speaker said "We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] taken." He was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." In one of the most important First Amendment decisions of the last half-century, the Supreme Court overturned the conviction. "[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Thus, since the Klansman wasn't advocating imminent lawless action and likely to incite it, his words were protected by the First Amendment. By the same logic, Trump's comment is protected. It's conditional, it's directed to something that will happen (at the earliest) more than six months in the future, and it's not likely to produce action. I don't think this is a close call at all.

What if we stubbornly treat Trump's comment as a threat? Isn't it a federal crime to threaten a major presidential candidate?

Under the true threat doctrine, it's still protected by the First Amendment.

Consider the Supreme Court's ruling in Watts v. United States. At an anti-draft protest, Watts said he would resist the draft and that "If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." He was convicted of threatening the President. The Supreme Court reversed the conviction. The court noted that the statement was made at a political rally and drew a laugh from the crowd. "We agree with petitioner that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."

Since Watts courts have grappled with whether the government must prove that a threat is just objectively threatening (meaning, a reasonable person would take it as an expression of intent to do harm) or also subjectively threatening (meaning, the speaker intended that it be taken that way), and that issue is not fully resolved. Thankfully we don't have to delve into the fetid swamp that is Donald Trump's subjective intent, because I don't think the objective test is anywhere close to being met. Like Watts, the statement was spoken at a political rally, and like Watts, it drew laughter, and like Watts, it was hypothetical and conditional. Moreover the "maybe there is, I don't know" softens it substantially. At most it's the sort of hyperbole that Watts protected. It's not anywhere close to the sort of extreme and specific statements that have been taken as threats in the political context, like the abortion provider "wanted" posters in Planned Parenthood v. American Coalition of Life Activists or the nutty white supremacist in United States v. Turner (both of which show how courts sometimes blur the lines between incitement and threats). Again, with respect to dissenters out there, I don't see this as a close call.

In America, under the First Amendment, I can say something like "if Donald Trump gets elected, someone should assassinate him for the good of the nation." That statement may be immoral, and destructive of the very American values it purports to defend, but unless it calls for imminent action or expresses an objectively credible intent to do harm, it's protected speech.

A Rare Federal Indictment For Online Threats Against Game Industry

The U.S. Attorney's Office for the Eastern District of California has sought and obtained an indictment against a young man named Stephen Cebula for sending online threats to Blizzard Entertainment, the freakishly successful powerhouse behind the Warcraft, Starcraft, and Diablo games as well as many others. The case is notable because it's so rare: there's so much threatening behavior online, and so little of it is addressed by the criminal justice system.

Stephen Cebula seems overtly disturbed. The search warrant for his home and subsequent criminal complaint tell a tale of him engaging in bigoted trash talk with other players on the Blizzard game "Heroes of the Storm," ranging from racial epithets to comments like "I will kill your family bitch" and fantasies about raping a child at Disneyland. Blizzard suspended Cebula's ability to communicate with other players. Cebula — perhaps tutored in law and political theory on Reddit, or by Milo Yiannopoulos — saw this as an outrageous violation of his freedom. He used his Facebook account "tedbundyismygod1" to send two threatening messages to Blizzard:

Careful blizzard … I live in California and your headquarters is here in California …. You keep silencing me in Heroes of the STorm and I may or may not pay you a visit with an AK47 amongst some other "fun" tools.

You keep silencing people in heroes of the storm and someone who may live in California might be inclined to "cause a disturbance" at your headquarters in California with an AK47 and a few other "opportunistic tools" …. It would be a shame to piss off the wrong person. Do you not agree blizzard?

Thus Cebula stood up for all the depraved manchildren of the internet who believe they have a moral right to squat on other people's property and yell "nigger" at passers-by.

Anyway, Blizzard reported the threats to the FBI. Since it was mega-corporation Blizzard calling — and not any one of the hundreds or thousands of Americans without lawyers and IT departments and security teams who get such threats every day — the FBI investigated, and quickly found Cebulba through his Blizzard account information at IP address. They discovered records of a 2015 incident in which he surrendered to Sheriff's deputies after making threats to kill someone at a park and to kill his sister, overweight people, and "various others that did not meet his specific views." He was committed for a 72-hour period then. The affidavit also suggests that he was in the system as a juvenile for threats.

The affidavit in support of the criminal complaint linked above — which is a brief addendum to the search warrant affidavit — notes that the FBI found Cebula at home, Mirandized him, and questioned him. Cebula admitted, among other things, that he intended to scare the people at Blizzard he had threatened and that he had looked things up like Blizzard's location in order to make his threats more credible. He also talked about his fantasies of violent assaults on children and of sexual assault of his five-year-old niece who lives in his home.

After his first appearance, Cebula was detained without bail based on the court's finding that he's a flight risk and a risk to others and bail conditions can't manage those risks. The court particularly took into account his suicidal and homicidal ideation. He's represented by the Federal Public Defender, who will likely do a good job for him. They already launched a creative and aggressive, if futile, attack on the indictment on the grounds that Cebula and Blizzard were both in California and thus the threats did not involve interstate commerce as required by the federal threat statute.

Cebula is charged with making threats under Title 18, United States Code, section 875. That's the same statute that was at issue in the Supreme Court's Elonis decision last year. Elonis concerned the intent the government must prove to convict someone under Section 875. Everyone agrees that a threat — to be outside the protection of the First Amendment — must be objectively threatening. That is, the government must be able to prove that a reasonable person would take it as a genuine expression of intent to do harm. The remaining question is whether the defendant must intend for the statement to be taken as a real threat — that is, whether there is also a subjective test. The Supreme Court didn't fully resolve this, suggesting that the government must prove at least that the threatener was reckless as to the impact of his or her threats, but not deciding whether there must be specific intent to threaten. In the meantime, most federal prosecutors are proceeding on the assumption that they must prove subjective intent.

Both subjective and objective intent can be more challenging to prove in the context of the internet, where insincere trash talk is so common. Here the prosecution has the benefit of Cebula's statements to the FBI admitting the elements of the offense by admitting that he intended to scare people at Blizzard. That statement makes even an insanity defense very difficult, because it suggests he understood the nature and quality of his acts and the impact they would have on people.

This is an ugly case. It's ugly because it's about untreated mental illness. It's ugly because for every corporation like Blizzard that gets federal law enforcement attention in an incredibly rare threats prosecution, thousands of individuals without such power and influence live in fear of Cebula's moral and intellectual ilk. It's ugly because I guarantee you that Cebula has fans. That's what online culture is like.

Edited to add: Naturally most media covering this reports that he's facing "up to five years in federal prison," which is indeed the statutory maximum. As I often discuss, the statutory maximum has very little relation to the actual probable sentence. The recommended range under the United States Sentencing Guidelines — which will be the starting point for the judge, who may go above or below — is likely about 10-16 months before any credit for a guilty plea.