Caleb Jamaal Clemmons, a 20-year-old psychology major at Georgia Southern University, posted what he called ""an experimental literary piece and an art project" on his Tumblr: "Hello. my name is irenigg and i plan on shooting up georgia southern. pass this around to see the affect it has. to see if i get arrested."
Indeed he was. He was arrested for terroristic threats under Georgia law and spent six months in jail awaiting trial because his family couldn't afford the $20,000 bail. Yesterday he accepted a guilty plea and was sentenced:
Superior Court Judge John Turner sentenced Clemmons to five years of probation. During that time he is banned from four counties, including the one in which his school is located, and he is not allowed to use social media. He must complete a mental health evaluation within 30 days of release. He must also complete a drug and alcohol evaluation and avoid contact with alcohol and illegal drugs during his probation.
He was additionally sentenced to six months in jail, which he has already served, and 150 to 180 days at a probation detention center, which was suspended. He will be released today.
Clemmons' art project presents a slightly more difficult case than the Facebook comments of Justin Carter, whose statement was unequivocally a joke in its context. Clemmons was charged under Title 16, Section 16-11-37 of the Georgia Code:
A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence, to release any hazardous substance, as such term is defined in Code Section 12-8-92, or to burn or damage property with the purpose of terrorizing another or of causing the evacuation of a building, place of assembly, or facility of public transportation or otherwise causing serious public inconvenience or in reckless disregard of the risk of causing such terror or inconvenience.
I've talked before about how threat statutes can have objective or subjective components, or both: that is, they can require proof that (1) a reasonable person would interpret the threat as a genuine statement of intent to do harm, or (2) the defendant intended that it be taken as a genuine statement of intent to do harm, or (3) both. Georgia has adopted a subjective test for this statute:
“A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence[ ] … with the purpose of terrorizing another[.]” OCGA § 16–11–37(a). See Lanthrip v. State, 235 Ga. 10, 11, 218 S.E.2d 771 (1975). “The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.” Armour v. State, 265 Ga.App. 569, 571(1), 594 S.E.2d 765 (2004). Thus, the State must establish two elements to sustain a conviction for making terroristic threats: (a) that the defendant threatened to commit a crime of violence against the victim, and (b) that the defendant did so with the purpose of terrorizing the victim. Martin v. State, 303 Ga.App. 117, 119(1), 692 S.E.2d 741 (2010).
Clement v. State, 309 Ga. App. 376, 379, 710 S.E.2d 590, 592 (2011)
Did Caleb Jamaal Clemmons threaten to commit a crime with the intent to terrorize? That is, was the subjective test satisfied? I can't know what's in Clemmons' head, but I suspect the answer is no — that he didn't form the specific intent to terrorize anyone. His problem — and the reason that this incident isn't as clear-cut as Justin Carter's — is that his statement contained within it a suggestion that he thought someone would take it seriously enough to report it to police. His words "pass this around to see the affect it has. to see if i get arrested," conveyed that Clemmons thought, in a muddle-headed way, that someone might take the threat as true enough for him to be reported to police and arrested for it. I suppose you could take it as commentary — "let's see whether something that is clearly not a threat gets me arrested for a threat" — or, as he said, "artistic," which might mean anything or nothing. But uttering a threat (even a satirical or frivolous one) and following it up with "pass that around and see if it gets me arrested" is rather astoundingly reckless and imbecilic.
In short, in contrast to other recent internet threats we've seen in the news (like Carter's), I think that there was probable cause to arrest Clemmons, but that it is very questionable whether he should be convicted. I don't think an objective test for true threats could be met beyond a reasonable doubt, and there is a colorable argument that the First Amendment requires an objective test even when a statute purports to impose only a subjective test.
The injustice of the case was that Clemmons was detained pretrial for six months even though investigation showed he had no weapons and there was no indication whatsoever he intended to hurt anyone. He spent six months in jail because his family is poor; someone with the assets to post bail would have been out in a day and likely would not have been sentenced to any jail time. The scope of the restrictions on his activities and movements is also very troubling given the nature of his "threat." They don't seem to have a rational connection to the offense.
One lesson of the Clemmons case might be "don't be an moron and make threats and speculate whether you'll get arrested for them." But another might be this: as think-of-the-children and OMG-9/11 thinking drives governments to prosecute more and more internet rhetoric, poorer people will usually be hit harder, as they always are by the criminal justice system.
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