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.
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.
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.
"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?
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.
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.
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.
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.
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.
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?
"...but still leaves him more respectable than the average white self-styled rapper." Wow, sick burn.
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.
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"
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?
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.
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!
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.
“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.