True Threats And American Cultural Gulfs
When Should A Threat Be Outside of First Amendment Protection?
It’s weird out there, man.
We don’t live in a single unified culture here in America. We live in big messy toybox full of disparate cultures with some monocultural ideas (McDonald’s, putting the shopping cart back, not yelling at puppies) poured over the top. This is mostly fine. Monocultures are stultifying and trend towards tyranny. Different cultures rubbing elbows is great. Have you tried Korean/Mexican fusion? Those kimbap burritos are life-altering.
But many of the common-law concepts on which our legal system is built presume a monoculture, and work imperfectly in a big messy mix of cultures. Take the reasonable person standard — or, more traditionally, the reasonable man. I feel pretty comfortable I can guess what a suburban college-educated professional white dude thinks is reasonable. Do I know what a grade-school educated woman who immigrated from El Salvador working the garlic fields in Gilroy thinks is reasonable? Doubtful. There’s a gulf between our experiences, and that gulf makes it hard to imagine a shared reasonable person relevant to everyone.
My Threat Is True
These socioeconomic, ethnic, gender, and cultural gulfs show up in First Amendment law. Take the “true threats” doctrine. That’s the doctrine that a threat is only outside the protection of the First Amendment if it is “true” — that is, if a reasonable person would take it as a sincere expression of intent to do harm to someone. In an atomized society, what the hell does that mean? Is the standard some hypothetical generic middle-American? Is it a reasonable person from the subculture of the speaker, or the hearer, or both?
This is not an idle question. Different communities can have radically different understandings of whether words are threatening. Take the case of Justin Carter, a Texas kid charged with making terrorist threats for shit-talking on a chat for the game League of Legends. League is a game that appeals to chronological and behavioral adolescents. Judging from my son playing it in his room back when he was in high school, it requires shouting “fuck” a whole lot. It’s notorious, among people who are familiar with gaming communities, for being absolutely flooded with extravagant trolls and performative misanthropes. During a dispute in a chat, someone called Justin Carter “crazy” and he typed back"I'm fucked in the head alright, I think I'ma SHOOT UP A KINDERGARTEN ... AND WATCH THE BLOOD OF THE INNOCENT RAIN DOWN ... AND EAT THE BEATING HEART OF ONE OF THEM." Now, maybe it’s just because I’ve been part of internet culture for half my life, but that’s very self-evidently hyperbole and trash-talk to me. The forum, the cultural context, the conversational context, and the language all scream that it’s not serious. But a Canadian mother (sent by the gods of dramatic and convention) saw it and reported it to the police, who prosecuted Justin Carter for a serious felony for five years before dropping it to a misdemeanor.
The problem was that the cultural context of the Canadian mother and the Texas prosecutors and judge was radically different than the cultural context of a too-online teenager. They have no shared “reasonable person.” Thus the prosecutors and judge thought this was self-evidently a terrifying threat and everyone who has ever been online further than their email immediately thought it was just internet bullshit. How do you resolve, for First Amendment purposes, which culture the “reasonable person” is from when they decide whether that could be a true threat?
Tone Dougie Speaks The Subjective
One way you might be able to bridge this gulf is by adding a subjective component to the true threats test. That is, you could require that to be a true threat, a statement must not be just objectively threatening to a reasonable person, but also require that the speaker had some sort of wrongful subjective intent — an intent that it be taken as a threat, recklessness or indifference to how it would be taken, or so forth. Different jurisdictions apply different rules for the subjective component of the true threats test.
In 2015, the United States Supreme Court declined to decide that question. In Elonis v. United States, the court took up the case of Anthony Elonis, a would-be rapper who called himself “Tone Dougie” and wrote menacing posts about his ex-wife, his kids’ school, and the FBI agents who visited him at home. Mr. Elonis — who years later became absolutely irate at me on Twitter for blocking him (because he’s a disturbed freak and calls himself Tone Dougie) — was convicted under the the federal interstate threat statute. The Supreme Court had the opportunity to rule whether (1) the First Amendment requires a subjective component to any true threats case or (2) whether recklessness would satisfy that standard, but instead (3) punted and only decided that the federal threats statute requires some kind of subjective intent, don’t ask us what, maybe we’ll tell you next time. That’s why they pay them the big bucks. The Supreme Court reversed the conviction, but a lower court found that the failure to instruct the jury on subjective intent was harmless, and Mr. Elonis remained convicted. He served his time, but was recently convicted again of an entire new set of threats and last month sentenced to 151 more months in federal prison. This is not a promising development for his future, but still leaves him more respectable than the average white self-styled rapper.
This month, the Supreme Court stepped back into the true threats question in a case called Counterman v. Colorado. Counterman, who is mentally ill, was convicted of stalking a Colorado artist through thousands of unwelcome text messages with disturbing content. His lawyers argue that he lacked subjective intent to threaten. Colorado argues that his messages were objectively threatening and that creating a subjective test means that crazy people can menace others all they like. Many academics and organizations have weighed in on both sides, arguing that the subjective standard allows disturbed people to stalk at will or that failure to use a subjective test allows the government to punish jokes and political speech. Some conservatives on the Court seemed to use the argument as an opportunity to score cultural points, scoffing that kids these days are too sensitive. Other justices pointed out that a reasonable woman would find thousands of unwanted texts objectively terrifying and that’s not over-sensitive, you utter turd. The Court seemed, based on oral argument tea leaves, poised to consider whether being reckless about how speech is interpreted could satisfy the true threats test. Watch for the decision by June. It may or may not cast light on what the true threats test requires.
But however the Supreme Court decides Counterman, it won’t resolve the legal/cultural dilemmas America faces. Anthony Elonis’ ex-wife, and the artist threatened by Counterman, were women. Woman often assess threats differently than men do, and might ask whether “reasonable person” still does mean “reasonable man.” Cops who investigate crimes, prosecutors who pursue them, judges who preside over the cases, and juries that resolve them may come from dramatically different cultures than either the utterer or target of alleged threats, making it difficult to understand the context. However the Supreme Court rules, we’ll still be left with internet-illiterate prosecutors who take trash talk as true, and cops who refuse to investigate threats because women can just “go offline for a while.” There can be both under-prosecution and over-prosecution. Under-prosecution of threats is bad because in modern America threats are often used to suppress and deter free speech, free assembly, and freedom of worship.
We Know How To Consider Context
How would you devise a true threats standard that both protected people from being truly threatened and gave wide “breathing room” to free speech? I think we could borrow some concepts from defamation law. Recall that to be defamatory, and outside the protection of the First Amendment, speech must be provably false — that is, a provably false statement of fact, not mere hyperbole, rhetoric, insult, or opinion. In deciding whether a statement is factual, courts ask how a listener familiar with the speaker and forum and context would take it. Hence, in deciding whether a magazine piece should be interpreted as satire or a false statement of fact, a court will look at how someone familiar with the magazine, author, and circumstances would take it. In other words, the test requires the decision maker to think about the cultural context of the intended audience.
You could import that concept into true threats analysis and ask “would a reasonable person familiar with the intended audience and forum interpret the statement as a sincere expression of intent to do harm?” That would eliminate cases like Justin Carter’s, where the answer is obviously no. But it would also prevent people like Anthony Elonis from threatening people outside their subculture and then claiming “oh, well, you just don’t understand, this is my culture.” That’s a common excuse of angry dudes on the internet. The “intended audience” requirement would distinguish cases like Justin Carter’s — where someone outside the culture happens across the speech — and Elonis’ or Counterman’s — where the speech is deliberately directed to someone in a different culture. Add to that a subjective requirement that the speaker intend that the audience take it as a true threat, or be reckless about whether the audience would take it that way, and you’ve got a very speech-protective test that acknowledges that different cultures understand things differently but still protects people from malevolent behavior.
I generally advocate for the narrowest possible interpretation of First Amendment exceptions. That’s because cops, prosecutors, litigants, and governments are constantly pushing the envelope, seeking to widen any exception to encompass speech they don’t like. Wider, more flexible First Amendment exceptions chill speech; narrower, more specific exceptions encourage speech. But threats also chill speech. Threats are more likely to chill and deter the speech of people who have less power. Nothing in American constitutional history requires courts to say “well, if ‘I’m coming to your house to kill you’ has a special internal meaning to you, then it’s protected.” As a parent, nothing requires you to tolerate your kid holding his hand a quarter inch from his little sister’s face saying “I’m not touching you, I’m not touching you, I’m not touching you.” As a society interested in everyone’s rights, nothing requires us to tolerate a lunatic like Anthony Elonis making statements that anyone would expect to be terrifying to the target, just because Anthony Elonis thinks he’s a rapper.
You've really hit the core of the issue here, that the lack of a single unifying fabric making these issues...complicated. I'll go further, now there's a meta-structure that's picking winners and loosers and pitting them against each other.
Take any extremely online subculture and share a couple of their "I'm just venting" statements with someone from almost any other context, you'll often get shock, horror, rage, or some combination of all three.
How do you put humpty-dumpty back together again without...making enemies by assimilating everyone into (what?) ?
Yes. This is a good analysis. It's especially tough given the prevalence of gun culture. At the Proud Boys trial, they represented themselves as basically peaceful guys who would only ever act in self-defense or the defense of others who were being attacked. They have a very loose interpretation of that, since it includes prowling the streets for "antifa" or BLM people to fight. Zach Rehl testified that he didn't see anything unusual at the Capitol on January 6, no riot, "just a few scuffles."
In open carry states, it's entirely legal to carry a loaded assault rifle in the ready position. If you happen to have a loud conversation with someone and tell them what to do or where to go, that's not a true threat. Even if you say, "i'm going to fuck you up!" It's not a "true threat" until you point the gun AND rack a round into the chamber. Otherwise it's just profane bluster with no subjective intent to hurt anyone.
A culture of intimidation is a huge problem. And it's more of a problem now back where I grew up in Idaho than it is, in my experience, in the projects in the south Bronx where I go every week to lead church services. Alas, laws, legal administration and interpretation only contribute a small amount to relieving this problem.