Does Facebook Think Some Threats Are More True Than Others?

Law

Earlier today I discussed the uproar over a poll on Facebook asking "should Obama be killed." Someone reported it to the Secret Service, the poll was pulled (it's not clear to me by whom), and Facebook even disabled the poll application for now. There was much argument, here or elsewhere, about whether the poll was a criminal threat. My position is that it is clearly not, because it does not meet the legal definition of a "true threat" — that is, that is to say:

a statement, written or oral, [made] in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President. [emphasis added]

Here is the poll.

Obama poll

I submit that this cannot reasonably be interpreted as an expression of serious intent to inflict harm on the President. It's presented as a question rather than as a statement of intent. It's presented on Facebook. It's presented by someone with a Borat icon. "If he cuts my health care" suggests satire or political hyperbole. And so on.

Now, Facebook is private, and had every right to delete the poll (if they did) and disable an app that allowed users to make such a poll. That's true whether this is a "true threat" or not.

But here's my question:

Do Facebook, and the Secret Service, and the people who are very upset by this poll, think that some Facebook threats are more true than others?

See, I noticed that Charlie Spiering at the Washington Examiner asserted that Facebook still permits groups that involve threats to kill former President Bush. Being of a skeptical nature, I decided to double-check that. I logged onto Facebook and used the elaborate investigative tactic of typing "kill Bush" into the search box. Out spilled many, many results. Now, not all of those involve exhortations to kill President Bush. But a number do — a number that preceded President Obama's election. For instance, these were in the first dozen results:

Facebook Bush Threat 1

Facebook Bush Threat 2

Facebook Bush Threat 3

Facebook Bush Threat 4

Facebook Bush Threat 5

Now, why do you suppose that these are still up? Why do you suppose the Secret Service did not ask Facebook to take those down, as they apparently did with the Obama poll, or that Facebook did not take them down of their own initiative? We could speculate that they support such attacks on Bush but opposes them on Obama. That's very silly as to the Secret Service, and I think it's unlikely as to Facebook. We could speculate that nobody ever reported these groups — or any of the many other ones with similar language — to Facebook or the Secret Service. That, too, strikes me as unlikely during the contentious Bush years, when Bush supporters were vigilant for overheated left-wing rhetoric, and when the Secret Service expanded its web-searching operations to monitor threats to the President.

Or maybe, just maybe, the Secret Service and Facebook knew about these groups, but reasonably and correctly decided that they were political hyperbole and not rationally interpreted as true threats. It's entirely possible that the Secret Service investigated — as they tend to do even with clear political hyperbole — and determined that the groups were obviously not actionable, and required no further response. It's entirely possible that Facebook decided that these pages were obnoxious and juvenile, but ultimately not so inappropriate that they needed to be taken down.

But I'd like to know — why the different response to the Obama poll? What, exactly, makes that poll more of a true threat than these pages? Can anyone articulate a principled reason that the poll — which is posed as a question, where some of these are posed as statements of desire or intent — is more easily interpreted as a genuine statement of intent to harm the President?

I'd really like to know.

Let me make this clear: I do not ask this in service of the point "they did it to Bush, so it is OK to do it to Obama." Both the poll, and the pages above, are loathsome and should be condemned. I also do not raise the point to say "OMG WTF lol, liberals are hypocrites." Some liberals are — as are some conservatives — but that's just not the point. I genuinely want to know — why some, and not others? Why don't the parties involved here have a coherent and consistent view of what a true threat is?

Edited to add: I emailed Facebook Wednesday morning, linking this post and asking them if they had a principled basis to delete one and not another. (I didn't ask them to delete these posts.) As of tonight — about 24 hours after I wrote this — Facebook took down four of the five pages above without comment.

Last 5 posts by Ken White

24 Comments

24 Comments

  1. Jeff Gamso  •  Sep 29, 2009 @11:12 pm

    First question: Why would you expect them to be coherent and consistent?

    But a few possibilities do spring to mind, not about whether one or another is a true threat as case law defines the term (none of those you've posted strike me as satisfying that standard) but as to why there may be more concern about the Obama poll. In no particular order:

    1. For all the open hostility to Bush during his years as President, there seemed to be less a view that he was personally evil than that Obama is. Despised, reviled, hated, yes, but personally evil, no. (And, of course, if you killed Bush, you got Cheney, which wouldn't likely cheer the would-be assassins.) I think it was Turley who tracked down the poll showing that some 13% of the voters in New Jersey actually believe Obama to be, personally, the AntiChrist.

    2. As the Kennedyesque figure, Obama seems assassination worthy in a way that Bush didn't. Remember, during the primary campaign Hillary Clinton actually suggested at one point that Obama would likely be assassinated if he were elected.

    3. A generalized sense that these days the right-wing nuts are more likely to be armed and inclined to shoot than the left wing nuts.

    So none of this addresses your particular question, but when has government (the Secret Service) or business (Facebook) actually been consistently coherent?

  2. Scott Jacobs  •  Sep 30, 2009 @1:03 am

    "and the people who are very upset by this poll, think that some Facebook threats are more true than others?"

    Why must you ask such rhetorical questions?

    Re #2 from the above comment: Dude, seriously? There's a reason I call Biden "Obama's Life Insurance"…

  3. strech  •  Sep 30, 2009 @6:10 am

    I think it was Turley who tracked down the poll showing that some 13% of the voters in New Jersey actually believe Obama to be, personally, the AntiChrist.

    It was 8%, 13% "not sure", and 5% of Obama voters. (PPP pdf). And hell, I'd be tempted to say "Yes" to a poll asking if pretty much any politician was the antichrist, and I doubt I'm the only one, so I wouldn't take those numbers seriously.

    While I don't think our eager reporters in this case would have reported the Bush pages, I'm not sure Facebook's actions can be tracked in the same way. It's a matter of publicity – the Obama poll got it, those groups didn't. And now they're old and stale.

  4. Linus  •  Sep 30, 2009 @6:31 am

    Can anyone articulate a principled reason…

    And your quest was doomed to failure. There is no principled reason.

    or all the open hostility to Bush during his years as President, there seemed to be less a view that he was personally evil than that Obama is. Despised, reviled, hated, yes, but personally evil, no.

    This was not my experience of the years 2000-08. Although, to be fair, Cheney got the "he eats babies" charges more than Bush did.

    Whether Obama is more likely to be assassinated than Bush was, whether because he is Kennedy-esque(which may have been seen as a compliment, but I wouldn't) or otherwise, is kind of beside the point. The question is, is there some principled reason that a friggin' FACEBOOK poll is more dangerous, or a more credible threat when applied to Obama than to Bush. I don't see how that can possibly be true, seeing as how we are dealing with a friggin' FACEBOOK poll. A POLL. On a website which is by gum saturated with polls such as "Which Jane Austen character are you?"

  5. Chris  •  Sep 30, 2009 @6:56 am

    I wouldn't be at all surprised if they weren't reported to the Secret Service. They're groups with very few members, and I'd be surprised if the Secret Service was logging into facebook and searching for "kill bush".

  6. Dave (ND)  •  Sep 30, 2009 @8:12 am

    We killed Jesus once. We can't make the same mistake twice.

  7. mojo  •  Sep 30, 2009 @9:05 am

    "Kennedyesque figure"

    Oh, please.

  8. Kryten  •  Sep 30, 2009 @9:34 am

    You wrote LOL in lowercase letters!! How could you?!

  9. Windypundit  •  Sep 30, 2009 @10:29 am

    Ken is contacted by the Secret Service regarding threats to the president in 5…4…3…2…

  10. Max Power  •  Sep 30, 2009 @10:48 am

    I think this poll, for whatever reason, attracted a lot of public attention while these other groups didn't. If these groups got some media/blog face time, which they might thanks to your blog, I think they will be taken down.

  11. Fat Freddy  •  Sep 30, 2009 @3:00 pm

    First of all, not so much the person who created the poll and posted it, but the people who actually voted "yes" [the president should be killed].

    As to why the "threats" against BHO are taken more seriously than GWB. Well ,let's see. We've been swinging black folk from trees for many years in this country. Not so much, anymore, but this is American, and we have a rich history.

    [Aryan Nations link deleted]

  12. Ken  •  Sep 30, 2009 @3:07 pm

    THanks Freddy, but you can make the point without actually linking to the Aryan Nations from here, please.

    Let me make sure I have you right. You think that it is — or should be — illegal to say certain things about some presidents but not others? Or are you saying that whether it is legal, or illegal, depends on the skin color of the President?

    Can you find any cases, Freddy, that support the notion that the "true threat" test depends on the level of opposition to the President in question? (Hint: if you read Watts, you'll find the opposite — that the prevalence of overheated rhetoric makes it less likely that a particular statement can be reasonably interpreted as a true threat.

    Second, do you think that voting "yes" on a poll asking "should Obama be killed" is reasonably interpreted as a serious expression of intent that the person voting will harm the President? Really?

  13. Paul Baxter  •  Sep 30, 2009 @3:34 pm

    I have no idea what the relevant laws, precedents, etc. are, but it wouldn't bother me in the slightest if any sort of public speech (print or otherwise) using unambiguous language advocating the killing of the president were to be illegal. I don't see how any good would be removed from public discourse by such a principle.

    Then again, I'm not a person who is comfortable with rights language in general, so I'm a bit out of the mainstream on american political philosophy all around.

  14. Ken  •  Sep 30, 2009 @3:39 pm

    I have no idea what the relevant laws, precedents, etc. are, but it wouldn’t bother me in the slightest if any sort of public speech (print or otherwise) using unambiguous language advocating the killing of the president were to be illegal. I don’t see how any good would be removed from public discourse by such a principle.

    All killings, or only some killings? What about "George W. Bush should be extradited to the Hague, tried, and executed?" What about "If President Glenn Beck did rape and kill a girl in 1990, he should be impeached, tried, and executed?"

    Also, is it your position that this poll was unambiguous language advocating the killing of a President? If I start a poll, does that mean I unambiguously advocate one possible answer?

    Then again, I’m not a person who is comfortable with rights language in general

    I'm not sure what that means.

  15. DevilDan  •  Sep 30, 2009 @3:48 pm

    Thanks for all this guys. After reading through dozens of comments on the "Junior Secret Service Agent" blogger Gotta's site, I was feeling fairly despondent, downright depressed, in fact. This site is like a refreshing bath that helps wash away the "stupid."

  16. Fat Freddy  •  Sep 30, 2009 @4:25 pm

    Ken
    Let me make sure I have you right. You think that it is — or should be — illegal to say certain things about some presidents but not others?

    No, I was just trying to point out why some threats should be taken more seriously than others with respect to our "history". I doubt any of it rises to the level of criminality. I remember a radio show host who got into a lot of hot water a while back for telling people to stop paying their taxes. I think it was Irv Homer in Philadelphia.

    Second, do you think that voting “yes” on a poll asking “should Obama be killed” is reasonably interpreted as a serious expression of intent that the person voting will harm the President? Really?

    Of course not. At least not in and of itself. We are talking about investigating and not prosecuting, right? And as far as Free Speech, it was a privately owned site.

    There is a case in NJ pending which is similar. Here's the link to a Libertarian Blog about it. The person made the statement, and then also posted names, addresses, and phone numbers. I'm not comfortable at all, with this one.

    http://www.reason.com/blog/show/134367.html

    Are you? It should be an interesting case.

  17. Ken  •  Sep 30, 2009 @4:31 pm

    Freddy, as I've said, I have no problem with the Secret Service investigating, so long as they obey the strictures of the Fourth Amendment (which allows them to show up, ask questions, ask for consent, review public records, etc.).

    It sounds as if we are on nearly the same page. Yes, the Turner case is a troublesome one. I think Jacob Sullum is right that it is properly analyzed as incitement rather than threat. I'm not sure I agree with him that the incitement is not sufficiently immediate. I'd have to see all the facts (like the proximity of releasing addresses to saying "they should be killed," for instance) to know.

  18. Ken  •  Sep 30, 2009 @9:47 pm

    See update in post.

  19. Fat Freddy  •  Oct 1, 2009 @3:12 am

    Ken,

    Obtain search warrants, question friends, family and employers, subpoena bank records??? Would it be OK for a judge to sign off on a search warrant in this case? It starts getting a little hairy. Personally, I think this entire thing is a giant case of pure stupidity. And if stupidity were against the law, these guys would get life sentences. I find it difficult to defend stupidity that rises to this level.

  20. Ken  •  Oct 1, 2009 @6:16 am

    Freddy:

    No to a warrant, because I don't think that there's probable cause that it's a true threat, and therefore no probable cause to think that a warrant will yield evidence of a crime. Yes to interviewing friends, family, and employers who are willing to talk — that doesn't implicate Fourth Amendment rights, and the government is free to ask questions of whomever they want so long as they do so voluntarily.

  21. astonied  •  Oct 1, 2009 @8:48 am

    Ken for the most part I understand and agree with you. But I will also say (on a totally different track) I do believe that while the law may allow you to do something it doesn't mean it is prudent or nice to do it. For instance, the law may allow me to run around naked on Black's Beach but it would be a cruel thing to do to my fellow Americans (yet a wonderful thing for the makers of Viagra whose sales would surge by the populace that saw me…another words they would then need the services of the drug after that scary site) AM I making a point? I guess not.

    Well really I do have a question. So what happens if this person's employer were to find out they did this poll of FB and all of a sudden this person was out of a job? When you post such polls are you taking some sort of risk besides the gestapo hauling you off to some secret location in say, Cuba?

  22. Ken  •  Oct 1, 2009 @9:15 am

    Update: note that the Secret Service investigated and determined that the person who posted the poll was a child and that, reasonably, no charges will be brought.

    Most people would recognize this as a phenomenon of ancient provenance: "kids are assholes." I expect reaction to be "OMG rightist rage has warped teh chiiilldreeen."

  23. Ken  •  Oct 1, 2009 @9:19 am

    I do believe that while the law may allow you to do something it doesn’t mean it is prudent or nice to do it.

    I have zero disagreement with that. And the way we point that out is with speech, a social sanction against imprudent and not-nice behavior.

    So what happens if this person’s employer were to find out they did this poll of FB and all of a sudden this person was out of a job? When you post such polls are you taking some sort of risk besides the gestapo hauling you off to some secret location in say, Cuba?

    What happens if the person is out of a job? That's an employment law question. It depends on the nature of the employer-employee relationship — to summarize an extremely complex and varied field to the point of being unhelpful, some employees may, in some circumstances, have protection from being fired for speech activity like this. [A complete answer to your question, with all the possible scenarios (private vs. public employee, contract vs. no contract, different jurisdictions, etc.) would take hours and hours.

    Suffice it to say that in many circumstances an employer could fire an employee for posting that poll. I don't have a problem with that, at least for private employees.

  24. Bob  •  Oct 1, 2009 @1:07 pm

    Hahaha. .the first few comments on that CBS article all say "kid? what like 16? then he's a terrorist" and "lock up the parents."