I'm waiting for the Supreme Court to decide Elonis v. United States, which may or may not clarify the difference between "true threats" and speech protected by the First Amendment. It's possible that the Supreme Court will clarify whether a "true threat" must be both objectively threatening (that is, a reasonable person hearing the threat would believe it to be a sincere expression of intent to to harm) and subjectively threatening (that is, the accused intended for the threat to be taken as a sincere expression of intent to do harm). Or it's possible that the Supreme Court will merely decide whether the federal interstate threat statute requires both.
In the meanwhile, let's look at a kind of case in which the distinction might make a difference.
Ebony Dickens, a 33-year-old woman from East Point, Georgia, has been arrested and charged with making a threat on Facebook under the name Tiffany Milan. Here's the threat:
Various news outlets report that she's been charged with "disseminating information related to terrorist acts." I haven't seen the complaint against her yet, but I suspect that's a case of a police spokesperson throwing words together haphazardly and journalists obligingly writing them down. (Note: I may be wrong on this. See update.) Betcha she's charged with making a "terroristic threat" under 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. No person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated.
Under Georgia law the state has to prove that Dickens made "(1) a threat to commit any crime of violence (2) with the purpose of terrorizing another.” That's a subjective inquiry rather than an objective one.
Georgia authorities apparently didn't charge her with incitement of a crime. That's the right call. Under an incitement theory, the state would have to meet the Brandenburg test — that the speech was intended and likely to cause imminent lawless action. Dickens was venting on Facebook, not exhorting an angry crowd near a police line. Her "all Black ppl should rise up" and "I condone black on white killings" and "death to all cops" are protected.
The threat analysis is a closer call. I take "Might kill at least fifteen tomorrow" as clear internet bluster and hyperbole, but I suppose others might think that a reasonable person could interpret that as an expression of intent to do harm. I think it's a weak case under an objective analysis, given the explicit free speech discussion that's part of it and the Facebook context. (Also, I understand it was proximate to other Facebook posts that made it more clearly seem like bluster — looking for them now). What about subjectively, under Georgia law? The state will have to prove that Dickens' purpose was to "terrorize others." Given that she's talking to her friends on Facebook, and explicitly couches the statement as an exercise of free speech, that seems to be a bit of a stretch. I wouldn't want to be defending her in front of a jury, though: they might not care about what the standard is.
In evaluating how seriously the system views this threat, note that the court released Dickens on a $10,000 bond.
Postscript: Ms. Dickens has an "advanced degree in law studies." I thought only people on Twitter had that.
Update: Commenter Lefty68 points out that I've missed a statute: Georgia Code 16-11-37.1 eluded me in my Westlaw search. That statute says:
It shall be unlawful for any person knowingly to furnish or disseminate through a computer or computer network any picture, photograph, or drawing, or similar visual representation or verbal description of any information designed to encourage, solicit, or otherwise promote terroristic acts as defined in Code Section 16-11-37. Any person convicted for violation of this Code section shall be guilty of a misdemeanor of a high and aggravated nature.
Section 16-11-37 is the threat statute above. But wait — this section doesn't talk about disseminating threats, it talks about terroristic acts as defined in that statute. Acts are defined as follows:
(b) A person commits the offense of a terroristic act when:
(1) He or she uses a burning or flaming cross or other burning or flaming symbol or flambeau with the intent to terrorize another or another's household;
(2) While not in the commission of a lawful act, he or she shoots at or throws an object at a conveyance which is being operated or which is occupied by passengers; or
(3) He or she releases any hazardous substance or any simulated hazardous substance under the guise of a hazardous substance for 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.
That doesn't seem to apply at all. Let's see what shows up when the criminal complaint against her is released.
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