Meant To Be Threatening, Or Reasonably Seen As Threatening?

Law

The First Amendment permits punishment of "true threats," but not punishment of threats that aren't true. That much has been clear for decades — some threats are too rhetorical, too conditional, too hyperbolic, and too far from serious to fall outside the zone of free speech protection. The classic example is 1969's Watts v. United States, in which the Supreme Court found that the First Amendment protected a draft protestor's right to say this:

"They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." "They are not going to make me kill my black brothers."

That's not a true threat, the Court said:

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.

How do you tell the difference? Well, it's clear that you either use an objective test (asking whether a reasonable person would take the statement as a genuine expression of intent to do harm), or a subjective test (asking whether the defendant intended to convey a threat of harm), or both. Some statutes require the subjective test — like the Georgia statute used to prosecute a college student for an "experimental literary piece". Other statutes use the objective test — like the federal law against threatening federal officials used to convict white supremacist blogger and radio host Hal Turner.

Today Wired reports that the Supreme Court has refused to hear a case that would clarify whether the objective or subjective test applies to the federal interstate threat statute, 18 U.S.C. section 875(c). Franklin Delano Jeffries II was convicted under section 875(c) for a YouTube video in which he sang a song threatening to kill the judge hearing his daughter's custody case:

I don’t care if I go to jail for 2,000 years.
’Cause this is my daughter we’re talkin’ about,
And when I come to court this better be the last time.
I’m not kidding at all, I’m making this video public.

’Cause if I have to kill a judge or a lawyer or a woman I don’t care.
’Cause this is my daughter we’re talking about.
I’m getting tired of abuse and the parent alienation.
You know it’s abuse.
I love you; daughters are the beautiful things in my life.
It keeps me going and keeps me alive everyday.
Take my child and I’ll take your life.

I’m not kidding, judge, you better listen to me.
I killed a man downrange in war.
I have nothing against you, but I’m tellin’ you this better be the last court date.
Because I’m gettin’ tired of missin’ out on my daughter’s love.
(And that’s the name of the song by the way “Daughter’s Love.”)

It's still not as bad as Coldplay. Anyway, the United States Court of Appeals for the Sixth Circuit affirmed the conviction, finding that Section 875(c) requires an objective test and that the evidence against Mr. Jeffries was sufficient to show that reasonable people would have perceived Jeffries' communications to convey a genuine threat. The Sixth Circuit notes that the Ninth Circuit is the only court to say that Section 875(c) requires a subjective test as well, and the other ten Circuits have gone the other way. The judges of the Sixth Circuit are too polite to roll their eyes at the judges of the Ninth Circuit.

Jeffries sought review by the Supreme Court, arguing that the Court should require a subjective test. Jeffries' argument is not a bad one. He says that these cases are now often about online threats, and that the gulf between online culture and meat-world culture can make it difficult for a jury to assess the context of a threat to determine if it should be understood as genuine:

The gap between what a defendant actually intended and what a juror conceiving of him- or herself as a “reasonable” observer might infer about that intent from the defendant’s speech is greatly magnified when the communication, including paradigmatic expressive activity, takes the form of fragments of online video, text messages, and “tweets”—presented with little or no context, and broadcast to audiences that are often unclear even as to the identity of the speaker. Cf. Mason, supra, at 73 (“The anonymity and potentially unlimited mass audience of internet speech poses difficulties for application of traditional doctrines governing speech, including the reasonable- person test for true threats.” (footnote omitted)). In this case, for example, the individual who saw the video on Facebook and alerted authorities was not a “Facebook friend” of petitioner’s. See Trial Tr. 135- 138; see also Recent Case, supra, at 1144 (“If, for example, an individual were to upload a video to YouTube and negligently but honestly believe the video’s privacy settings prevented anyone else from viewing it, the objective standard would not take the individual’s subjective intent into account * * *.”).

The incidence of cases like this one—in which a jury convicts a defendant of criminally threatening
speech, despite a possible absence of intent, based on its necessarily limited grasp of what a reasonable
YouTube viewer infers from a whimsical or convoluted video presented in that medium—will therefore
only increase as expressive activity continues to migrate online.

This argument has a certain amount of appeal. One expects disturbed or trollish people to bloviate online, and that bloviation often has a different meaning to people familiar with the medium. But the culture-clash argument cuts both ways. People unfamiliar with — for want of a better term — "Internet culture" can be genuinely terrified by online threats, and online threats can generate disruption and costs. As the Solicitor General wrote in a brief opposing Jeffries' petition:

Nothing in the text of threat statutes such as Section 875(c) requires the government to prove that a defendant subjectively intended his communication to be regarded as a threat. In fact, requiring proof of a subjective intent to threaten would undermine one of the central purposes of prohibiting threats. As this Court has noted, in addition to protecting persons from the possibility that threatened violence will occur, a prohibition on true threats "protect[s] individuals from the fear of violence" and "from the disruption that fear engenders." R.A,V., 505 U.S. at 388; see Black, 538 U.S. at 360 (quoting same); Pet. App. 9a, 13a (quoting same). A statement that a reasonable person would regard as a threat to kill creates fear and disruption, regardless of whether the speaker subjectively intended for the statement to be taken as a threat. Cf. United States v. Castagana, 604 F.3d 1160, 1164 (9th
Cir. 2010) ("Even if a perpetrator does not intend that his false information be believed as indicative of terrorist activity, the false information will nevertheless drain substantial resources and cause mental anguish when it is objectively credible.").

Put another way, Jeffries is suggesting that an objective standard doesn't protect enough speech because jurors may not be able to apply the "reasonable person" test to an unfamiliar context and culture, and the Solicitor General is saying that a subjective test protects too much speech because it allows threats that genuinely terrify people even if the defendant was only trolling.

By rejecting Jeffries' petition, the Supreme Court maintains the status quo, where proof of subjective intent to threaten is only required here in the Ninth Circuit in Section 875(c) prosecutions. I suspect it will stay that way for a while.

Meanwhile, I've added a "true threats" tag and applied it to all old posts addressing this issue.

Last 5 posts by Ken White

49 Comments

49 Comments

  1. Alex  •  Oct 7, 2013 @4:42 pm

    I may be the lone voice expressing this view here, but it seems that the subjective test leaves too much room for a defendant to try to back out later when his original intent was to truly threaten. To compare the examples of Watts v. U.S. and the case of Franklin Delano Jeffries II seems to make it rather obvious the intent. Jeffries made sure to put in that he has killed before (granted, while in war) and listed multiple people he would be willing to kill to get his way, a more detailed threat than that of Watts and much less worthy of dismissing as "a kind of very crude offensive method of stating a … opposition." It seems to me that allowing him to later say (in internet parlance) "lol j/k" would set a precedent for granting more leeway to other cyberbullies to get out of facing punishment for their threatening, deliberate harassment, and/or (I feel I'm using this word appropriately here) terrorization of people by simply saying "But I didn't mean it your honor." What would there be to stop people otherwise?

  2. jimmythefly  •  Oct 7, 2013 @4:44 pm

    LOL at there being a "reasonable person" to be found on the internet.

    Also, I don't see where any "reasonable person" is required to be familiar with the context? Or is that implied -that anyone not familiar with the context by definition cannot be considered "reasonable" for purposes of evaluating statements made in that context.

    Can I judge a threat made by morse code, even though I would have to have it translated for me first?

  3. solaric  •  Oct 7, 2013 @4:47 pm

    [...]and the Solicitor General is saying that a subjective test protects too much speech because it allows threats that genuinely terrify people even if the defendant was only trolling.

    I actually am not sure if you're entirely correct in your analysis. It seems to me as if there's a pro-speech part of "disruption that fear engenders" in that perhaps the most basic and widespread consequence of threats in general is self-censorship. In fact, that seems to be one of the most common goals of threats too, not some particular action or money but just to get people to shut up about something the threatener doesn't like. In that respect, any threat that passes the objective test of causing terror to a "reasonable person" would do its job of reducing speech regardless of whether it was "intended" or not, which is a pretty impossible standard anyway as "oh I was just joking" can be said about absolutely anything.

    There is certainly no right to be free of criticism, even extremely harsh and nasty criticism, and as is so often correctly pointed out here the marketplace of ideas is the best way in general to hash out discussions. However, as with all marketplaces I think it is pretty widely accepted that to function there has to be a baseline in which physical violence is not involved. "You're a fucking idiot and your ideas all suck [4k work rant begins]" is fine, but "Here's where your live and here's where your child goes to school and shut up or something bad will happen" is less so. Giving the latter too much benefit of the doubt in a Free Speech analysis raises questions, as the express purpose is to suppress Free Speech. The marketplace of ideas seems like it would be at best heavily impaired by threats that reasonable people felt were real (and in turn would took seriously).

    It would have been interesting to see the Solicitor General explicitly make a pro-speech argument there in that the subjective test itself could harm speech, not protect it.

  4. Burk  •  Oct 7, 2013 @4:50 pm

    Jeffries' argument seems to miss that, to paraphrase Ken, the gulf between online culture and meat-world culture can make it difficult for *the target of a threat* to assess the context of a threat to determine if it should be understood as genuine.

  5. Hoare  •  Oct 7, 2013 @5:06 pm

    a YouTube video in which he sang a song

    A song can be a true threat?
    I thought "reasonable people" were involved

  6. David Schwartz  •  Oct 7, 2013 @5:10 pm

    Jeffries' argument seems to miss that, to paraphrase Ken, the gulf between online culture and meat-world culture can make it difficult for *the target of a threat* to assess the context of a threat to determine if it should be understood as genuine.

    Since this affects both tests equally, I don't see how it bears on Jeffries' argument. The objective test takes into account the full context in which the statement is made. If the target isn't aware of that context, they may reasonably perceive something as a threat despite it failing both the subjective and objective threats. I don't think any law can fix that.

  7. James Pollock  •  Oct 7, 2013 @5:10 pm

    When you say "subjective test", you suggest that there is only one (did the speaker intend their speech to be perceived as a threat) but in the text you kind of slip in the other version of a subjective test (did the target actually perceive a threat).

    I can see all three (objective, subjective relative to speaker, and subjective relative to target) being relevant to a determination of whether or not a specific communication is or is not a threat..

  8. AlphaCentauri  •  Oct 7, 2013 @5:48 pm

    What are the rules governing witness intimidation? Because it seems this threat is against his daughter's mother as well as the judge.

  9. Jeroen  •  Oct 7, 2013 @5:53 pm

    I don't know that there is such a thing as a reasonable person. People who perceive of themselves as reasonable might very well be unreasonable in certain contexts, given or lacking certain information or a certain background. At least another such 'reasonable' person might think so about this supposed 'reasonable' person.

    People are too complex and have been proven to apply subjective filters even to supposedly objective subjects as maths. Asking what a reasonable person might think seems to invite infinite recursion.

    So it's a bit jarring to see "What a reasonable person would conclude" as an objective test. How can asking a for all intents and purposes random person something be called objective?

    If the test was 'What an average person would conclude', that'd be better, but even then the whole jury pool had pretty much better agree unanimously to get any statistical significance. When someone's future's at stake, even 20 people from the same district as the court seems problematic, especially when something concerns an online video seen by a much diverse bunch.

    A more objective test would be for the prosecution to call – at random – 500 people in the country (on speakerphone), and without introducing himself/herself play the transcript of the supposed threat. If the prosecutor is in turn threatened with a call to the police, apologise and explain, and score one for the prosecution.

    If the recipient of the call asks instead which colleague from work it is trying to prank them, not so much. Or something… People in general have too many preconceptions to be objective, even if they wanted to, especially if the subject at hand strikes a chord.

    Which brings me to my next point: If the test is whether fear is engendered in the target audience, how does that not make fear mongering politicos liable for telling the public that they should fear the boogeyman of the week?

  10. Lizard  •  Oct 7, 2013 @6:00 pm

    @James: The problem with "subjective relative to the target" is that if you spend any time on the Internet, you will encounter clueless dolts who are utterly incapable of telling threat from rhetoric. For example, recently, some radio shock jock updated the over forty years old saw about various ghosts visiting a President or other politican, offering advice, until the ghost of Lincoln arrives and advises that the joke's subject "should visit the theater". Ha ha! Get it? The theater! I may hurt myself laughing. Ahem.

    This joke has been around all of my life (starting, in my personal knowledge, with Reagan as the target) and probably goes back decades more. The aforementioned radio host used Hillary Clinton for $PoliticianNameHere. This got the Usual Suspects up in arms over how this was "a threat to MURDER HILLARY!!!!" and how the "ReThugLicans" were always using "violent threats" to suppress/intimidate/yaddayadda The People. Pointing out how old this joke was, and how utterly interchangeable the targets of it were, naturally did nothing to cause anyone to rethink their position. (It can easily be found online, for instance, on a collection of Bush jokes dated 2003. "But that's different!" "Why?" "Hey look, here's a video of a cat falling off something!")

    Thus, anything, no matter how objectively non-threatening, may be subjectively perceived as a threat by those with no sense of context, culture, or history, or as they're known these days, "people who post on Gawker.com".

    Likewise the subjective perception of the speaker is also risky, as noted: The speaker, if called to account, may pull the "I was only joking!" routine, and since the government keeps the results of their decades-old telepath breeding program under wraps, the courts can't use them to determine actual intent. Sometimes, there's clues that can indicate if there was an intent to threaten; as discussed on the multiple threads on this subject, the increasingly public nature of our every utterance provides a lot of background to indicate is a person intended to cause fear or not, regardless of their after-the-fact statements.

    I may be a little confused by Ken's use of "subjective" when I'd use the term "contextually objective", that is, "a reasonable person familiar with the culture and context in which the speech occurred". Ken's the law-talking-guy, so I'm going to assume he's using the correct legal term. I have trouble with the idea of a contextually-blind "objective" test, because that's meaningless; there's no such thing as a lack of context, and part of the "reasonable man" approach must, to me, include the context in which something occurred. We see this problem a lot — trash talking in a video game is not the same context as the same words uttered in a bar — and while you objectively compare things within a context, you can't objectively compare them across contexts.

  11. Jim Tyre  •  Oct 7, 2013 @6:05 pm

    @Jeroen

    I don't know that there is such a thing as a reasonable person.

    When I was in law school (before the Internet existed, mind you) I thought one of my better money-making schemes was to become a certified reasonable person. So much in the law depends on what a reasonable person would think or do, and as a certified reasonable person, whatever fee I might choose to charge for my expert testimony would be reasonable by definition.

    Many found me to be certifiable, but sadly, no one certified me.

  12. Jeroen  •  Oct 7, 2013 @6:17 pm

    @Jim

    When I was in law school (before the Internet existed, mind you) I thought one of my better money-making schemes was to become a certified reasonable person. So much in the law depends on what a reasonable person would think or do, and as a certified reasonable person, whatever fee I might choose to charge for my expert testimony would be reasonable by definition.

    Many found me to be certifiable, but sadly, no one certified me.

    I hope they found you at least reasonably certifiable? *hi-hat*

    But, with a bit more gravitas, from this I conclude you've found the notion of an objective test in many laws based on opinions – by their nature subjective – funny as well. Feel free to correct me if that mischaracterises your intent.

    I wonder how many law professionals silently substitute "reasonable person" for "average person" to avoid the judge holding them in contempt for eye-rolling.

  13. mud man  •  Oct 7, 2013 @6:47 pm

    Maybe a better standard would be about creating a "climate of hostility", so the offense would have to occur in some actual context. Eg in this case, the climate of hostility was already long in place, so absent some overt act … no harm, no foul.

    Usually hereabouts "the remedy for bad speech is more speech", but it is hard to see how that would work in this case.

  14. xtmar  •  Oct 7, 2013 @6:53 pm

    @mud man

    Obvious remedy is the judge making a threatening video back, rap battle style…

  15. Amber  •  Oct 7, 2013 @7:19 pm

    My solution:

    The only thing that matters is physical action. As such, text, speech, song, video, or other forms of communication are covered in tota by the First Amendment.

    Likewise, a betting pool on when the unfortunate resident at Ground Zero, or any other individual, is terminated with extreme prejudice, or otherwise loses their corporeal existence should be, and in a moral, just, and ethical society, would be completely legal.

  16. En Passant  •  Oct 7, 2013 @7:31 pm

    Amber wrote Oct 7, 2013 @7:19 pm:

    Likewise, a betting pool on when the unfortunate resident at Ground Zero, or any other individual, is terminated with extreme prejudice, or otherwise loses their corporeal existence should be, and in a moral, just, and ethical society, would be completely legal.

    Jim Bell wrote about this in detail decades ago. He wound up in prison, in part because of his effort to explain and advocate it.

  17. xtmar  •  Oct 7, 2013 @7:33 pm

    @Amber

    Interesting but unworkable. At some point, your speech becomes harassment. For instance, picketing and loudly protesting a person of importance on occasion is acceptable. However, if you intentionally run a wall of sound around their house 24/7 with the purpose of making them unable to sleep, it's still speech, but it's also harassment.

    This is in fact the strategy that the US military used to drive Noriega out of the Vatican embassy in Panama in the 1980s. Now, to make it more relevant, assume that the loud music/noises were relevant to the cause, rather than just tuning in some top 40 station. (Though I imagine 40 hours of Bieber on repeat at 110dB would be worse than 40 hours of being called neo-Nazi scum or what have you.)

    Also, this method has been used as torture to break prisoners. I think most people would agree that your right to free speech stops short of the right to break people via torture methods, though you may disagree where that exact line is.

  18. pillsy  •  Oct 7, 2013 @7:35 pm

    @Amber:

    Unless I'm misreading you, that would extend First Amendment protection to really unambiguous threats, like, "If you don't give me $50, I'll break your face."

    That seems like a bad idea.

  19. anne mouse  •  Oct 7, 2013 @7:51 pm

    @Jeroen,

    You've forgotten that the first class of law school is "unlearning English." Do not be surprised that what Ken calls the "objective test" has only a vague and tenuous relation to objectivity as understood by non-lawyers.

  20. Alexander Hamilton, Jr  •  Oct 7, 2013 @8:16 pm

    So the court is threatening me with incarceration?

    @xtmar That is what the government goons did to Koresh et al. in Waco too.

  21. solaric  •  Oct 7, 2013 @8:49 pm

    anne mouse wrote:
    You've forgotten that the first class of law school is "unlearning English." Do not be surprised that what Ken calls the "objective test" has only a vague and tenuous relation to objectivity as understood by non-lawyers.

    Worth remembering too that that's pretty common with all specialized fields of any kind. A particularly common current events example would be the huge disparity between a layperson definition of "hypothesis" or "theory" and the scientific definitions. Any non-expert should usually double check terminology before jumping to conclusions in a discussion that touches specialist topics.

  22. lagaya1  •  Oct 7, 2013 @11:14 pm

    If a man says (twice!) during his threat that he's not kidding, I have to believe he's not kidding.

  23. Cat  •  Oct 7, 2013 @11:15 pm

    Words, man. They'll trip you up every single time, because ain't no one gonna use them to mean what you think you thought you meant when you said them.

    Words. Grrrr.

    Also, I thought (in general) the hoary old cliche about "your right to free speech and self expression ends at the point your fist hits my nose" would be some kind of defense against "inspiring fear" in another person? I mean, just saying "Hello" can inspire fear depending on how you say it and to whom you say it? It's a slippery point, I guess, because I can understand how it can become actionable while at the same time understanding that people shouldn't allow words to effect them (absent clearly expressed intent and actions).

    I dunno. Just meandering here.

  24. Aaron S.  •  Oct 7, 2013 @11:40 pm

    I think the problem people run into with these cases is when they start saying "I'm not kidding. Seriously, I know this seems comedic but I'm not joking. No really, not joking, totally serious." Still should be protected, but I can see running into trouble in front of a jury.

  25. Allen  •  Oct 8, 2013 @12:13 am

    It strikes me that there should be an ability aspect to it. If a person makes a threat but has a diminished capability to carry it out wouldn't that weigh in?

    I would assume as much, but I honestly don't know.

  26. Anony Mouse  •  Oct 8, 2013 @2:45 am

    Coldplay is music for people who hate music, so talk about damning with faint praise.

  27. matw2  •  Oct 8, 2013 @3:57 am

    A true threat through the medium of a song written for youtube?

    Next, President Mahmoud Ahmedinejad shall deliver his speech on Israel through the medium of dance.

  28. NI  •  Oct 8, 2013 @4:37 am

    I don't see how this case can be squared with NAACP v. Claiborne Hardware. During the civil rights era, the NAACP announced a boycott of local merchants, and the local head of the NAACP told a crowd that "if we catch any of you going in any of those racist stores, we're gonna break your damn necks." That certainly sounds like a threat to me, but the Supreme Court held it was protected speech. The only difference I can see between the two cases is that that was then, and this is now.

  29. NS  •  Oct 8, 2013 @7:13 am

    @matw2

    Next, President Mahmoud Ahmedinejad shall deliver his speech on Israel through the medium of dance.

    President who? What country is he president of?

    I think the 6th made the right call here. Purely my feelings on the subject, but this seems like a true threat to me, Jeffries is just upset about twisting in the wind for the stupid statement he made.

    The action/speech divide strikes me as false. Speech is an action, particularly in a democratic society. Some speech is protected from government reprisal, and some is not. Jeffries' is not, nor should it be. The only question is, how should the law be tailored to prohibit his speech, but not that of others, who are not threatening to murder people?

  30. NS  •  Oct 8, 2013 @7:22 am

    @NI

    I don't see how this case can be squared with NAACP v. Claiborne Hardware. During the civil rights era, the NAACP announced a boycott of local merchants, and the local head of the NAACP told a crowd that "if we catch any of you going in any of those racist stores, we're gonna break your damn necks." That certainly sounds like a threat to me, but the Supreme Court held it was protected speech. The only difference I can see between the two cases is that that was then, and this is now.

    Did the local NAACP leader provide evidence that he had the capability to carry out his threat? Did he insist, in no uncertain terms that his threat was not a joke?

    I’m not kidding, judge, you better listen to me.
    I killed a man downrange in war.

    That might be the difference.

  31. NI  •  Oct 8, 2013 @9:25 am

    @NS, I have no doubt that the NAACP had enough muscle to actually break the necks of any recalcitrant African Americans patronizing the boycotted stores. And if you read the speech in its entirety, I doubt very much that he was joking.

  32. Dion starfire  •  Oct 8, 2013 @10:09 am

    Am I the only one that realized this idiot has greatly reduced his chances of winning custody with this bit of idiocy?

    Are there actually courts that would entrust a child to somebody who considers threats of violence to be acceptable forms of speech?

    The only way this guy could win after this is if the mother's a total crackhead (or something like that) with no affection for the child, there are no more-stable relatives willing to take custody, and the foster system is already overburdened. (I think that last one's probably true everywhere so it's kind of moot.)

  33. Peter H  •  Oct 8, 2013 @11:00 am

    I am reading the 6th circuit opinion, and they quote the song at much greater length than Ken does above. The longer quote does not do any favors to Mr. Jeffries here. If anything, the excerpt Ken picked is rather tame as compared to some of the specific threats that Jeffries uses. For example:

    ’Cause you don’t deserve to be a judge and you don’t deserve to live.
    You don’t deserve to live in my book.
    And you’re gonna get some crazy guy like me after your ass.
    And I hope I encourage other dads to go out there and put bombs in their goddamn cars.
    Blow ’em up. Because it’s children we’re, children we’re talkin’ about.

    or this:

    So I’m gonna f___ somebody up, and I’m going back to war in my head.
    So July the 14th is the last time I’m goin’ to court.
    Believe that. Believe that, or I’ll come after you after court. Believe that.

    or this:

    But look at my daughter from her mother’s abuse.
    She’s mentally and physically abused her,
    And I’m getting tired of this bull.
    So I promise you, judge, I will kill a man.
    This time better be the last time I end up in court
    ’Cause, damn, this world is getting tired.

    Also, as noted on page 5 of the ruling, Jeffries sent a link to the video to a reporter at a TV news station and a state legislator. That evidence indicates to me that Jeffries did not believe himself to just be bloviating, but thought that his threatening video was a matter of serious public concern, and at least intended the judge to feel threatened, whether or not he intended to carry out the threat. So even if this went back for retrial, I would not be surprised if Mr. Jeffries were to be convicted again under the alternate standard.

  34. Steven H.  •  Oct 8, 2013 @11:51 am

    @NS:

    I’m not kidding, judge, you better listen to me.
    I killed a man downrange in war.</blockquote.

    That might be the difference.

    Hmm, when I hear "I'm not kidding!" appended to a threat, I start thinking "five year old", NOT "OMG this could be serious – he's not kidding!!!"

  35. Steven H.  •  Oct 8, 2013 @11:53 am

    Argh! No Preview! I should'a known better than to post!

  36. Athame  •  Oct 8, 2013 @12:09 pm

    I suppose one could investigate whether Jeffries actually owned a gun or had made any move to acquire one, but seriously? In what universe or legal standard is this not a threat? He states

    1) Motive
    2) Target
    3) Date
    4) Ability

    And he makes sure his targets know about it.

  37. AlphaCentauri  •  Oct 8, 2013 @1:34 pm

    If he had handed this poem to his psychiatrist instead of posting it on youtube, the psychiatrist would have been required to violate confidentiality to warn the potential targets of the threat.

  38. Lizard  •  Oct 8, 2013 @2:14 pm

    Will no one but me mention the elephant in the room? Namely, that it's a really, really, bad song?

    Surely that has to count for something.

  39. ChrisTS  •  Oct 8, 2013 @3:16 pm

    More of Mr. Jeffrie's 'song:'

    Stupid f___in’ [Guitar crashes over in the background] BOOM!
    There went your f___in’ car. I can shoot you. I can kill you. I can
    f___ you. Be my friend. Do something right. Serve my daughter.

    Yeah, look at that, that’s the evil. You better keep me on God’s side.
    Do the right thing July 14th.

    Seems like a real threat to me.

  40. Matthew Cline  •  Oct 8, 2013 @7:07 pm

    @Lizard:

    and since the government keeps the results of their decades-old telepath breeding program under wraps

    Shhhhhhh!!! *makes frantic hushing gestures*

  41. James Pollock  •  Oct 8, 2013 @8:52 pm

    "The problem with "subjective relative to the target" is that if you spend any time on the Internet, you will encounter clueless dolts who are utterly incapable of telling threat from rhetoric."

    In law school, this is covered in torts class as "the eggshell plaintiff". You give somebody the slightest push, and it turns out that they have some muscular disease that makes it hard for them to stand, and some bone disease that makes their arms shatter when they hit the ground. Does liability for battery cover the incredibly high medical bills this guy has, when the push wouldn't have caused a normal person to fall at all, much less be horribly injured?
    (The answer is yes, there is liability because touching someone without permission is wrongful, and if you do something wrongful you voluntarily take on all the risk that the person you've battered will sustain injuries far more severe than what you intended to inflict.)

    "Thus, anything, no matter how objectively non-threatening, may be subjectively perceived as a threat by those with no sense of context, culture, or history"

    This, however, is not the point. Examine instead the OTHER END of this axis. Is there, or should there be, liability for a threat where the person targeted by the allegedly threatening communication did not perceive a threat? To use your radio shock jock example, regardless of how other people reacted, is there (or can there be) liability if Hillary herself didn't perceive a threat? How about if Hillary didn't happen to be tuned in that day, and never even heard it?

    I ask this because to me, the major reason to make threats illegal in the first place is because it forces the target of the threat to either alter their behavior or to be in fear, both of which are wrongful. If they do not force the target to alter their behavior or be in fear, where is the harm that justifies limiting speech?

  42. James Pollock  •  Oct 8, 2013 @9:06 pm

    "since the government keeps the results of their decades-old telepath breeding program under wraps, the courts can't use them to determine actual intent."

    So, the whole "the NSA is reading your mail" thing is just a misdirect to keep you from noticing that they're reading your thoughts? Because, if they can read your thoughts, they don't have to read your email…

  43. Jim Tyre  •  Oct 8, 2013 @10:23 pm

    @James Pollock

    So, the whole "the NSA is reading your mail" thing is just a misdirect to keep you from noticing that they're reading your thoughts? Because, if they can read your thoughts, they don't have to read your email…

    Did someone watch the season premiere of south Park?
    http://www.smh.com.au/entertainment/tv-and-radio/south-park-takes-aim-at-nsa-in-whistleblower-parody-20131003-2uwll.html

  44. James Pollock  •  Oct 9, 2013 @6:06 am

    "Did someone watch the season premiere of south Park?"

    Not me. I don't have cable service.

  45. En Passant  •  Oct 9, 2013 @11:15 am

    Peter H wrote Oct 8, 2013 @11:00 am:

    I am reading the 6th circuit opinion, and they quote the song at much greater length than Ken does above. … For example:
    ’Cause you don’t deserve to be a judge and you don’t deserve to live.
    You don’t deserve to live in my book.
    And you’re gonna get some crazy guy like me after your ass.
    And I hope I encourage other dads to go out there and put bombs in their goddamn cars.
    Blow ’em up. Because it’s children we’re, children we’re talkin’ about.

    The courts are simply displaying their ignorance and hatred of Francophiles. Mr. Jeffries was hailed to court on Bastille Day, July 14. He was just singing an unfortunately garbled translation of La Marseillaise:

    Tremble, tyrants and you traitors
    The shame of all parties,
    Tremble! Your parricidal schemes
    Will finally receive their reward!
    Everyone is a soldier to combat you
    If they fall, our young heroes,
    The earth will produce new ones,
    Ready to fight against you!

  46. Jerry  •  Oct 9, 2013 @9:11 pm

    @James Pollack
    When a friend was in law school, we used to like to come up with absurd variations of cases to test their limits. (We were both ex-mathematicians, to whom this was an obvious game.) For the "eggshell skull" issue, we considered the following: Tom is deathly afraid of grape jelly, and believes everyone else is as well. In an attempt to frighten Bill, he shows Bill a large bowl of grape jelly. Tort? What if Bill happens to share Tom's terror (about which odd fact Tom has no specific knowledge, just his belief that people in general fear the purple stuff)? What if Sam, knowing nothing of Tom's special terror, shows him grape jelly, perhaps as part of a joking revenge for Tom's having stained Sam's clothing by spilling wine on him the previous day?

    Legal reasoning tends to avoid analysis of these kinds of exhaustive hypotheticals, limiting itself mainly to cases that actually arise. But this whole business of objective vs. subjective knowledge – and subjective on whose part – begs for a careful analysis of all the relevant combinations.

  47. James Pollock  •  Oct 10, 2013 @8:07 pm

    Tom is deathly afraid of grape jelly, and believes everyone else is as well. In an attempt to frighten Bill, he shows Bill a large bowl of grape jelly. Tort?

    No, it is not a tort to attempt to frighten someone. It IS a tort to make someone believe that they are going to be touched without permission (assault), but showing someone grape jelly isn't assault.

    What if Bill happens to share Tom's terror (about which odd fact Tom has no specific knowledge, just his belief that people in general fear the purple stuff)?

    Still not tort, because it is not a tort to succeed in scaring people, either, unless it constitutes assault. (If you were thinking IIED, think again… IIED is reserved for only the most heinous of offenses, which this isn't.)

    What if Sam, knowing nothing of Tom's special terror, shows him grape jelly, perhaps as part of a joking revenge for Tom's having stained Sam's clothing by spilling wine on him the previous day?

    Still no tort.

    The eggshell plaintiff isn't about how trivial or ridiculous the offense is, it's about how unexpectedly severe the damages are. The whole point of eggshell plaintiffs is that you can avoid liability to them by the simple expedient of not committing intentional torts against them.

    Legal reasoning tends to avoid analysis of these kinds of exhaustive hypotheticals, limiting itself mainly to cases that actually arise.

    Wild hypotheticals are for law school.

  48. Jerry  •  Oct 12, 2013 @5:14 am

    You're taking an out in the wrong place – proper for the real world, missing the point of the story. There was an assumed context (drawn from a real case I've long since forgotten) in which "showing grape jelly" was something genuinely threatening – a large, sharp knife, say – and making the threat was a tort, or something else actionable.

    A real world case that I recall we talked about that may have been related: Union picket line gets rowdy. A person is trying to drive through the line. Someone in the line picks up a brick, runs toward the car, and is clearly about to throw the brick directly at the driver's head. Driver runs down and injures picketer. (Assume there's no way for the driver to swerve or otherwise exit the situation.) Driver claims self-defense – the brick-holder was about to throw a brick at his head. Counter-argument: There's no way a human being could throw a brick hard enough to break through an auto windshield; the driver was not, in fact, in any danger. The counter-argument may be objectively true, but do we require a reasonable man in that situation, with at most seconds to consider his options, to reach that conclusion? (We were talking about this thirty or so years ago. Cue current stand-your-ground debates. Some things never change.)

    — Jerry

  49. perlhaqr  •  Oct 14, 2013 @2:28 pm

    I've been on the internet for a solid quarter century now. I grew up in the slums of alt.tasteless and have seen the fires of a million flame wars reflected off the rack cabinets of a thousand servers. I think I can pretty reasonably claim to be solidly familiar with "online culture".

    And I can't interpret that song as anything but saying "If this case doesn't go my way, I'm going to start killing people". I have to admit, it's about custody, and custody battles make passions run high. But the meaning expressed by the lyrics is pretty goddamn clear, from "I'm posting this publicly" to "if you take my child I'll take your life".