Meant To Be Threatening, Or Reasonably Seen As Threatening?
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
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