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.
An assault rifle is a military grade weapon capable of automatic fire. It is not legal to carry one in Idaho nor in any other state, much less at the “ready position” while telling people you are going to fuck them up.
If you are going to invent bullshit about gun culture, at least try to make it somewhat convincing.
I was responding to fan fiction, not writing it. If someone is going to go on an anti-gun screed, they should at least attempt to be factually correct and somewhat plausible in their examples.
Garrett, you're perfectly illustrating the point that Ken White raised. Different words mean different things to different audiences. I would never use the term "assault rifle" to any gun person--I'd probably say "semiautomatic rifle." But to most of the people who read this blog, an assault rifle is anything that looks scary and military. And that's legitimate, too. There's no objective meaning of "assault rifle." In this context, the Second Amendment does not trump the First.
The classification of certain guns as “assault weapons“ has been so contentious in the debate over gun control that anybody with even a passing familiarity with the issue knows that it is a distinct category from “assault rifles.” Doubly so for someone who used the phrase “ready position” in the same post.
This is not a matter of a difference of opinion. These are well defined phrases whose meanings can be checked with 15 seconds on Google. We should not excuse intellectual laziness on the grounds that other people might also be intellectually lazy.
Besides, “assault rifles” was hardly the most egregious part of Mr. Kadel’s post. I simply can’t prove that he has not personally witnessed an epidemic of people with scary guns intimidating their neighbors in Idaho (although I think we can all agree that claim is ridiculous). I can, however, prove that telling someone “I am going to fuck you up.” while carrying an assault rifle (or even an assault weapon) is not legal in Idaho.
Full disclosure: I listened to the episode of Amicus on this subject before reading this post.
In that episode Dr. Mary Anne Franks expressed astonishment at what sound like extremely callous comments from Justice Roberts, in which he coincidentally (ahem) takes some of the messages individually, out of context, to ask how they could ever be interpreted as threatening— in isolation. Eg. How could it possibly be threatening to ask someone to coffee?
(That is, as a very small audience might recognize, the basis of an internet battle called “Elevatorgate” years ago.)
But of course it’s not about one message. It’s not about a dozen messages. It’s not about hundreds of messages. It’s about thousands and thousands of messages over a period of years, directed at a person via numerous sock puppet accounts. And yes, it seems obvious to ask why she didn’t just get off the internet— or at least the social medium of choice. Eliding the question of whether she should have to, dammit, we can point out that she’s part of a fledgling music group with a need to connect to fans on a personal level in order to drum up interest. So she can’t just “go offline.” Not easily.
This is all context that complicates the woman on the Clapham omnibus. It drives her nutty, actually, how the chav in the seat behind her finds it funny to whisper vague threats into her ear and claim that it was all a joke afterward.
No, I don’t know how to fix this. It seems like such a pedestrian solution to just say there should be another, separate standard of “objective and reasonable” for female stalking victims. That implies all sorts of stuff we really don’t want to, such as the idea that there’s something particularly, inherently irrational and subjective about that identity as opposed to all others.
But maybe you can clarify something from Amicus, at least— is this really about true threat, or is it about stalking? Is there an error right at the beginning in trying to apply criteria that don’t fit the statute in question? This seems plausible at least, but I’m not sure how anti-stalking laws themselves hold up against the First Amendment. Worse than true threat standards, I assume.
Oh, and I forgot about the “mentally ill” element of it— why is that relevant? He could send those messages without intending to be threatening and still have that effect, mentally it or not. He could send those messages intending to be threatening, mentally ill or not.
Yes, intent matters. But I don’t see what mental illness is supposed to show about the presence or absence of intent.
'Mental illness" could encompass a huge swath of things, from ADHD that makes it hard for me to focus on completing a list, much less completing the things on the list, and....being the kind of schizophrenic who authentically, deeply believes that a beautiful actress would be impressed into loving you if you assassinated a president.
So yeah, it could mask intent. It could also mask lack of intent. Or it could do neither. I genuinely can't tell what inference we're supposed to be making here.
Exactly my thought. I’m not even sure where I come down on the question of whether introducing a subjective component to the true threats analysis is a net good or bad thing for free speech; I really can see it both ways. But it seems tricky to define the intended audience of an edgelord who, say, replies to a tweet (is it only the person he replies to, everyone whose @ is included in the reply, everyone who may see the tweet and be dumb enough to explore the replies?) or even sends a regular tweet that he’s reasonably (ha) certain will be seen by a particular person whom he may or may not have tagged (with or without a period before their @).
Let's take the dilemma to a different issue - that of the right to self defense. And let's present to case of an 84 year old who believes that a black teenager at his door is a threat. The 84 year old, apparently convinced by right wing media that the world was very frightening, was likely in earnest when he shot at the teenager. But his actions were wrong. Period.
Let's drop back to the first amendment again and suggest that judges were always limited in their understanding. So usually they were middle aged white guys who had little in common with women, the poor, black people and even younger white guys. So the expectation of reasonable white men is just a story we tell about ourselves.
Perhaps all judges should do is cobble together the best judgement for a single case and forget the larger questions.
And by the way, we never had a single white man. The immigrants in eastern cities - often Catholics and Jews, had a different sense of things than did white protestants in the midwest. And forget about the South.
At least now we know that it was all just a story.
The other thing to bear in mind is that it is perfectly possible for something to be illegal even if the subculture in which it takes place permits or even requires it.
There are numerous subcultures in the United States where if a man is insulted in public he is expected to respond with violence. His reputation will suffer, and he may even be ostracized if he habitually fails to do so. Nevertheless, assault remains a crime punishable by a few months to a few years in prison.
Are there places on the Internet so vile (4chan, CoD chat rooms, the Reason comment section) that what is considered ordinary interpersonal conduct with in the milieu of the forum nevertheless qualifies as a true threat?
"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."
Are these the same conservative justices that whinged and got a federal law passed to protect their fee fees after people legally protested the overturning of Roe?
Uh... are you sure that mentioning Anthony Elonis on Substack doesn’t magically summon him to appear like it did on Twitter? Or are you just hoping that he didn’t get a cell phone from the prison commissary due to him being in prison for the next twelve years for cyberstalking?
Pretty sure you're speaking metaphorically but for anyone who doesn't know, cell phones are contraband in prison and can even lead to criminal charges. Which (duh) does not stop people from having them.
An important, Carlsonian question that I'd like to add to the pile: can (or should) "a reasonable person wouldn't take [statement] seriously, given the context" be overcome by evidence that large swaths of people *do* take [statement] seriously? See also an imaginary Alex Jones who was not constantly and obviously contemptuous of the legal proceeding he was nominally participating in.
That would be evidence. But generally the idea that some people will take it seriously is built in. If you follow that link in the defamation paragraph you'll see that courts recognize that some people take parody/satire literally and that's built in. But if a large number of people take it seriously, even people familiar with context, that is evidence that a reasonable person would take it as a real threat.
That is a wild case. I feel like I can't even continue this conversation because now I have to process an extremely unhealthy volume of irony. It's like I chugged a keg of salt, and the salt was potentially defamatory claims about retracting defamation.
There's an excellent article called "The Views of Other Judges" which talks about this problem, albeit in the context of debates among judges. In general, I think law does not do nearly enough of these kinds of checks on judges' subjective beliefs about "reasonableness." It is, for example, extremely bizarre and off-putting to have cases where two members of an appellate panel say "no reasonable person could find for the plaintiff" and a dissenting judge saying "I could totally find for the plaintiff." That's very close to judges accusing each other of being unreasonable.
That level of cognitive illiberalism has no business in law, particularly when you're talking about preemptively stripping juries of the power to decide cases.
As a labor attorney, I find the law in this area confounding. More or less everyone agrees that threats of economic retaliation can sometimes be enjoined or even criminally prosecuted (blackmail and extortion are unpopular, to say the least), yet no one can articulate a constitutional test for when, and all the proposals are either hopelessly subjective, arbitrary, far too permissive of coercion, or all three.
Isn’t the central problem that there is an element of extortion to a lot of salary negotiations?
“Give me a raise, or I quit.” is a much less severe threat than “Give me a raise or I’ll report your illegal dumping to the EPA.” but it’s a difference of degree, not kind.
Is there a non-arbitrary way to draw a line on the continuum between the first statement and the second?
Great analysis. As a Cannuck, I have to say, when my kids were in school, I met quite a few Canadian Moms like the one cited and I often thought to myself – "What planet are these people from?" I think it's not so much Canadian culture (which is a kind of weird niche thing which most Canadians know nothing about) as over-protective parenting culture.
With all due respect, if someone says they're going to shoot up a Kindergarten, and "let blood rain down", I don't care what the context is. This person needs to get therapy while they are INCARCERATED.
See. Think of this here as an addendum to my comment below. you're stuck in the realm of a government's all-or-nothing power to respond, and contesting only whether this is a "true threat". You don't disagree at all that the consequence of this threat should be incarceration **if it's a true threat**. You simply have a different definition of "true threat" in mind than Ken Meersand.
Why can't the government have an interest in protecting life -- famously recognized in Dobbs, though also in many other places -- that allows a balancing test more complicated than absolute power over someone's freedom if the threat is true, zero power if the threat is false?
The answer is that it can, of course. It disappoints me when smart people neglect the obvious.
I agree. Better safe than sorry with threats of mass murder.
Perhaps if such threats are a centerpiece of online discourse, such desensitization is a part of the reason why we keep having these mass murder events before anyone can recognize and stop the threat.
The cynical take is that it isn't a Reasonable Man (or Reasonable Woman or Reasonable Person) standard, it's really a Reasonable Appellate Justice standard.
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.
An assault rifle is a military grade weapon capable of automatic fire. It is not legal to carry one in Idaho nor in any other state, much less at the “ready position” while telling people you are going to fuck them up.
If you are going to invent bullshit about gun culture, at least try to make it somewhat convincing.
Dude, this is 1st Amendment Blog, not 2nd. Go elsewhere if you want to write gun fan fic... /s... not really. No /s.
I was responding to fan fiction, not writing it. If someone is going to go on an anti-gun screed, they should at least attempt to be factually correct and somewhat plausible in their examples.
Even in a 1st amendment blog.
Garrett, you're perfectly illustrating the point that Ken White raised. Different words mean different things to different audiences. I would never use the term "assault rifle" to any gun person--I'd probably say "semiautomatic rifle." But to most of the people who read this blog, an assault rifle is anything that looks scary and military. And that's legitimate, too. There's no objective meaning of "assault rifle." In this context, the Second Amendment does not trump the First.
The classification of certain guns as “assault weapons“ has been so contentious in the debate over gun control that anybody with even a passing familiarity with the issue knows that it is a distinct category from “assault rifles.” Doubly so for someone who used the phrase “ready position” in the same post.
This is not a matter of a difference of opinion. These are well defined phrases whose meanings can be checked with 15 seconds on Google. We should not excuse intellectual laziness on the grounds that other people might also be intellectually lazy.
Besides, “assault rifles” was hardly the most egregious part of Mr. Kadel’s post. I simply can’t prove that he has not personally witnessed an epidemic of people with scary guns intimidating their neighbors in Idaho (although I think we can all agree that claim is ridiculous). I can, however, prove that telling someone “I am going to fuck you up.” while carrying an assault rifle (or even an assault weapon) is not legal in Idaho.
Full disclosure: I listened to the episode of Amicus on this subject before reading this post.
In that episode Dr. Mary Anne Franks expressed astonishment at what sound like extremely callous comments from Justice Roberts, in which he coincidentally (ahem) takes some of the messages individually, out of context, to ask how they could ever be interpreted as threatening— in isolation. Eg. How could it possibly be threatening to ask someone to coffee?
(That is, as a very small audience might recognize, the basis of an internet battle called “Elevatorgate” years ago.)
But of course it’s not about one message. It’s not about a dozen messages. It’s not about hundreds of messages. It’s about thousands and thousands of messages over a period of years, directed at a person via numerous sock puppet accounts. And yes, it seems obvious to ask why she didn’t just get off the internet— or at least the social medium of choice. Eliding the question of whether she should have to, dammit, we can point out that she’s part of a fledgling music group with a need to connect to fans on a personal level in order to drum up interest. So she can’t just “go offline.” Not easily.
This is all context that complicates the woman on the Clapham omnibus. It drives her nutty, actually, how the chav in the seat behind her finds it funny to whisper vague threats into her ear and claim that it was all a joke afterward.
No, I don’t know how to fix this. It seems like such a pedestrian solution to just say there should be another, separate standard of “objective and reasonable” for female stalking victims. That implies all sorts of stuff we really don’t want to, such as the idea that there’s something particularly, inherently irrational and subjective about that identity as opposed to all others.
But maybe you can clarify something from Amicus, at least— is this really about true threat, or is it about stalking? Is there an error right at the beginning in trying to apply criteria that don’t fit the statute in question? This seems plausible at least, but I’m not sure how anti-stalking laws themselves hold up against the First Amendment. Worse than true threat standards, I assume.
Damn, you're a good writer--lucid, sober, funny. It's tightly written and without the conceit I see in so many comments.
And here I thought I could forget about elevatorgate forever. :-(
Oh, and I forgot about the “mentally ill” element of it— why is that relevant? He could send those messages without intending to be threatening and still have that effect, mentally it or not. He could send those messages intending to be threatening, mentally ill or not.
Yes, intent matters. But I don’t see what mental illness is supposed to show about the presence or absence of intent.
'Mental illness" could encompass a huge swath of things, from ADHD that makes it hard for me to focus on completing a list, much less completing the things on the list, and....being the kind of schizophrenic who authentically, deeply believes that a beautiful actress would be impressed into loving you if you assassinated a president.
So yeah, it could mask intent. It could also mask lack of intent. Or it could do neither. I genuinely can't tell what inference we're supposed to be making here.
The elephant in the room left unaddressed is how that standard should be applied to posts on social media. What is the intended audience there?
I only intend for my social media posts to be read by people who won’t report me to the cops.
And, per my question above, what does “intended audience” mean in parasocial relationships?
Exactly my thought. I’m not even sure where I come down on the question of whether introducing a subjective component to the true threats analysis is a net good or bad thing for free speech; I really can see it both ways. But it seems tricky to define the intended audience of an edgelord who, say, replies to a tweet (is it only the person he replies to, everyone whose @ is included in the reply, everyone who may see the tweet and be dumb enough to explore the replies?) or even sends a regular tweet that he’s reasonably (ha) certain will be seen by a particular person whom he may or may not have tagged (with or without a period before their @).
"...but still leaves him more respectable than the average white self-styled rapper." Wow, sick burn.
Popehat is obviously an 18th century Englishman trapped in an American's body. His insults are so dry they're powdered.
Some would say that he is the intellectual heir to Churchillian repartee, only sober.
I actually stole that joke from Hugh Laurie's The Gun Seller. Sort of. The original joke was like:
"I'll take a dry martini. Very dry. Extra, extra dry. Powdered if you can manage it old chap."
Let's take the dilemma to a different issue - that of the right to self defense. And let's present to case of an 84 year old who believes that a black teenager at his door is a threat. The 84 year old, apparently convinced by right wing media that the world was very frightening, was likely in earnest when he shot at the teenager. But his actions were wrong. Period.
Let's drop back to the first amendment again and suggest that judges were always limited in their understanding. So usually they were middle aged white guys who had little in common with women, the poor, black people and even younger white guys. So the expectation of reasonable white men is just a story we tell about ourselves.
Perhaps all judges should do is cobble together the best judgement for a single case and forget the larger questions.
And by the way, we never had a single white man. The immigrants in eastern cities - often Catholics and Jews, had a different sense of things than did white protestants in the midwest. And forget about the South.
At least now we know that it was all just a story.
The other thing to bear in mind is that it is perfectly possible for something to be illegal even if the subculture in which it takes place permits or even requires it.
There are numerous subcultures in the United States where if a man is insulted in public he is expected to respond with violence. His reputation will suffer, and he may even be ostracized if he habitually fails to do so. Nevertheless, assault remains a crime punishable by a few months to a few years in prison.
Are there places on the Internet so vile (4chan, CoD chat rooms, the Reason comment section) that what is considered ordinary interpersonal conduct with in the milieu of the forum nevertheless qualifies as a true threat?
Great column.
I see your "my threat is true" and raise you one "I know this world is killing you". Literal or hyperbole, who can say?
"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."
Are these the same conservative justices that whinged and got a federal law passed to protect their fee fees after people legally protested the overturning of Roe?
"appears" should be "appeals"
My people etc.
Uh... are you sure that mentioning Anthony Elonis on Substack doesn’t magically summon him to appear like it did on Twitter? Or are you just hoping that he didn’t get a cell phone from the prison commissary due to him being in prison for the next twelve years for cyberstalking?
Beetlejuice rules. He gets 2 more.
Pretty sure you're speaking metaphorically but for anyone who doesn't know, cell phones are contraband in prison and can even lead to criminal charges. Which (duh) does not stop people from having them.
These policies violate the 8th Amendment. It deprives the incarcerated of their dignity by breaking their Wordle and Duolingo streaks.
An important, Carlsonian question that I'd like to add to the pile: can (or should) "a reasonable person wouldn't take [statement] seriously, given the context" be overcome by evidence that large swaths of people *do* take [statement] seriously? See also an imaginary Alex Jones who was not constantly and obviously contemptuous of the legal proceeding he was nominally participating in.
That would be evidence. But generally the idea that some people will take it seriously is built in. If you follow that link in the defamation paragraph you'll see that courts recognize that some people take parody/satire literally and that's built in. But if a large number of people take it seriously, even people familiar with context, that is evidence that a reasonable person would take it as a real threat.
That is a wild case. I feel like I can't even continue this conversation because now I have to process an extremely unhealthy volume of irony. It's like I chugged a keg of salt, and the salt was potentially defamatory claims about retracting defamation.
There's an excellent article called "The Views of Other Judges" which talks about this problem, albeit in the context of debates among judges. In general, I think law does not do nearly enough of these kinds of checks on judges' subjective beliefs about "reasonableness." It is, for example, extremely bizarre and off-putting to have cases where two members of an appellate panel say "no reasonable person could find for the plaintiff" and a dissenting judge saying "I could totally find for the plaintiff." That's very close to judges accusing each other of being unreasonable.
That level of cognitive illiberalism has no business in law, particularly when you're talking about preemptively stripping juries of the power to decide cases.
As a labor attorney, I find the law in this area confounding. More or less everyone agrees that threats of economic retaliation can sometimes be enjoined or even criminally prosecuted (blackmail and extortion are unpopular, to say the least), yet no one can articulate a constitutional test for when, and all the proposals are either hopelessly subjective, arbitrary, far too permissive of coercion, or all three.
Not great!
Isn’t the central problem that there is an element of extortion to a lot of salary negotiations?
“Give me a raise, or I quit.” is a much less severe threat than “Give me a raise or I’ll report your illegal dumping to the EPA.” but it’s a difference of degree, not kind.
Is there a non-arbitrary way to draw a line on the continuum between the first statement and the second?
Great analysis. As a Cannuck, I have to say, when my kids were in school, I met quite a few Canadian Moms like the one cited and I often thought to myself – "What planet are these people from?" I think it's not so much Canadian culture (which is a kind of weird niche thing which most Canadians know nothing about) as over-protective parenting culture.
With all due respect, if someone says they're going to shoot up a Kindergarten, and "let blood rain down", I don't care what the context is. This person needs to get therapy while they are INCARCERATED.
So blasphemy, basically.
See. Think of this here as an addendum to my comment below. you're stuck in the realm of a government's all-or-nothing power to respond, and contesting only whether this is a "true threat". You don't disagree at all that the consequence of this threat should be incarceration **if it's a true threat**. You simply have a different definition of "true threat" in mind than Ken Meersand.
Why can't the government have an interest in protecting life -- famously recognized in Dobbs, though also in many other places -- that allows a balancing test more complicated than absolute power over someone's freedom if the threat is true, zero power if the threat is false?
The answer is that it can, of course. It disappoints me when smart people neglect the obvious.
I agree. Better safe than sorry with threats of mass murder.
Perhaps if such threats are a centerpiece of online discourse, such desensitization is a part of the reason why we keep having these mass murder events before anyone can recognize and stop the threat.
“Putting the shopping cart back”? Where do you live? 😉
The cynical take is that it isn't a Reasonable Man (or Reasonable Woman or Reasonable Person) standard, it's really a Reasonable Appellate Justice standard.