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Samizdata quote of the day “Context matters—everyone agrees about that. And it’s the context that distinguishes the ordinary kinds of communication, protected by the First Amendment, from those kinds of statements, like threats or defamatory comments, that are crimes. The law recognizes that a threat is a kind of injury, over and above the language in which it is communicated. If I were to move my hand swiftly toward your face, and you flinch, that’s an assault because you’ve been made to reasonably fear for your safety. When exactly the same act is carried out through language, the protection that communication normally receives should not cover up the criminality of the underlying assault. Holding Elonis responsible for his actions threatens no serious threat to the First Amendment.”
– Timothy Sandefur, making an argument about how threatening messages issued via social media, etc, should be regarded from the point of view of free speech. I need to reflect a bit more about what I think about the cases he’s cited, but the whole article is worth reading.
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quis custodiet ipsos custodes
We can make judgements according to what someone thinks (or feels) is happening. But that way lies microaggression theory, and we have sufficient current examples of extremely touchy people going off like bombs over “micro-aggression” to suspect that’s not a good idea.
There’s a difference between threats and defamtion, which are not protected, and rudeness, which is. In one, I threaten or inflict an actual injury. In the other I merely give my opinion, albeit crudely.
Surely it’s up to a jury to decide which is which in individual cases? Reading the article, that appears to be what’s taking place here – a jury is trying to decide whether Elonis’ posts constitute a credible threat to his ex or not.
I may well be missing something here, but it seems to me that a threat should constitute a criminal offense (other than for the purposes of restricting orders and such) only when it is issued with the purpose of achieving something from the person being threatened – such as some kind of an action or inaction. Someone just mouthing off violent speech should by all means be socially ostracized, but I don’t think it is a matter for the law in which to get involved. If someone truly intends to commit unconditioned physical violence, they would commit it with or without verbal threats. And then, if anything, I think the threatened person is better off having been forewarned.
Well it is a startling revelation to me that an assault can be carried out by language, e.g. making someone flinch by typing words onto a screen. I wasn’t aware that words had physical form. Granted, if I spelt out my words in Scrabble letters and threw them at someone, that might make them flinch, but absent such an act (and the words would be immaterial, only the letters would be material), there is no sensible comparison. To call it ‘exactly the same act’ is utter, utter, utter crap, the writer surely must be able to see that.
An assault is a reasonable apprehension of immediate application of force in English law, waving a fist from the window of a departing train is not an assault, as the threat is physically impossible, as were the words, on grabbing a sword ‘Were it not Assize time, I would run you through’ (Assize being the sitting of the King’s court to hear felonies, hence the words negated the threat.
It may be that American law differs from English in the area of what constitutes an assault.
In this case, if the evidence is correct, there would appear to be a sustained pattern of actual or implied threats, so it may be easier to reach a judgement.
If every case of somebody shouting “I’m going to kill you” after a drunken brawl was taken to court, we should have to start building lots more prisons.
Threats of rape (or whatever) made on Twitter are (or should be) more premeditated, but are they real threats when coming from somebody hundreds of miles away?
Which leads to another question: does “I hope you die of cancer” (or some similar remark) come into the picture?
Assault was a common law offence, so it has the same root in the USA as in England.
A more fundamental issue here is whether or not Federal statutes extend to what looks to me like properly a State matter (or one for Congress, as delegated, in the District of Columbia). This sounds like a domestic violence case.
I really cannot see why the right to ‘free speech’ is engaged (I am disregarding precedent and looking at the words):
The First Amendment states:
The content of the speech is not the issue, speech is the means here (allegedly) to communicate a threat, one may still hold and voice opinions, but that is entirely distinct from acting aggressively and causing fear of violence. If I follow someone around all day saying “I am a crack shot with a Magnum, and I have the right to bear arms, and I can shoot you at 50 paces” I can’t see why the first amendment should protect me if objectively my words come within the terms of the common law on assault or some statute (especially as I never intend to visit the United States for any reason whatsoever).
I agree with Mr Ed that this should be a state domestic violence case. The only reason it is in federal court is because the putative threats were made via electronic communications (the internet), over which the federal government asserts jurisdiction under the “commerce clause”. In my opinion that is the most abused section of the Constitution and is completely wrongly interpreted, but it’s settled law and from the courts’ perspective jurisdiction properly attaches. So let’s move on.
Mr. Sandefur’s point is well taken. This is not legitimately a First Amendment case; there was no attempt to place any prior restraint on Elonis’ speech, but merely to punish him for issuing threats after he had actually made them. And I see no risk of any “chilling effect” on free speech from this prosecution. As Sandefur says, context is everything. In this case it appears that Elonis had enough of a history of violence that his ex-wife was able to obtain a protective order against him. That strongly suggests that it was entirely appropriate that his threats, veiled as they might have been (or claimed to have been, anyway), be taken seriously. If a reasonable person believes that he has been threatened, and the threat is credible, that is sufficient to establish the offense. One doesn’t always have to wait to be struck before the crime is committed (indeed, waiting to be struck converts the crime from an assault to a battery). The issues of reasonableness and credibility in any specific case are properly left to a jury. I see no First Amendment issue here at all.
The crux of Elonis’ complaint is that “the court instructed the jury that it was enough that ‘a reasonable person would foresee that the statement’ would be interpreted as a threat.” (See the Petition for a Writ of Certiorari, at page 2.) That seems to me to be an entirely correct statement of the law.
One of the big pushes back in the ’60’s by the revolutionary protest types was to have actions defined as forms of speech, so the protesters could commit various acts which would normally be considered vandalism or assault, but which could then be defended as a form of free speech.
It was a very cute gimmick then, and it worked to a certain point, along with some other semantic tricks which could be used to create seemingly plausible defenses for the protesters actions, while disarming anyone who stood in their way.
The high water mark for that particular game came at Columbia Univ., if I recall, when the security at the building housing the President’s offices attempted to block the protesters who were trying to push their way in to occupy the place, only to be charged with using violence when they blocked and pushed back against the occupiers, who, it was declared, were only using a form of forceful expression to present their ideas.
Anyway, the recent rhetorical game has been to classify speech that the progs don’t like as actions, thereby invalidating any right to express differing opinions as a form of assault, or hate speech, or the lately infamous micro-aggressions.
Of course, these classifications only go one way, i.e., the only speech disallowed as being hate or assault, etc., is speech opposed to the latest cause adopted by the collective to advance the narrative.
As has been pointed out many times, the claims made in one decade can be completely reversed in the next with no apparent qualms on the part of the collective hive mind. So the claims by gay activists of gayness as being genetic, and hard-wired, a few decades ago are now dismissed as homophobia if mentioned today when it is characterized as a lifestyle choice.
Similarly, the claim that people of color all thought one way would have been attacked as racist a few decades ago, but now it is routinely claimed that, unless a person thinks the way the collective demands, they aren’t a legitimate member of the race at all.
Many of these same twists and turns have been followed by feminist activists, environmentalists, and those who claim any question about Islamic fundamentalism is racist and phobic.
Once again, the mistake so many people make is to attempt to debate these issues while they let the collectivists define the terms and boundaries of the argument. It is necessary to dismiss these various rhetorical tricks as the gimmicks they are, and demand the discussion be held based on coherent definitions and premises, not positions invented only to gain an advantage by tilting the field.
I find arguing with the collective hive mind tedious at best, and always a waste of time for seeking any mutual understanding, but it is sometimes necessary in order to prevent 3rd parties whose minds are not yet made up from hearing only the emotive vitriol of the progs, and never any rebuttal from the real world.
Good luck in any dinner table conversations over the holidays, and I wish all here a Merry Christmas, and a very happy and peaceful New Year.
Question for you all: does it matter that the alleged threats were not made directly to her, but to others over facebook, perhaps with the presumption on the Elonis’ part that they would be communicated to her second hand? Would it be different if he did not make that assumption, but the threats were communicated nonetheless?
‘Free Speech’ has been interpreted by the courts to mean that you don’t need a license to speak, nor need to have speeches vetted first by the government- But it has never promised that you would never suffer consequences from what you say. If you reveal ‘TOP SECRET’ government information, you could be branded a traitor and prosecuted. If I told lies about any contributor here (did you know that Perry HATES Hippopotami?) he could track me down and sue me in court.
Free speech does not free you from consequences.
Alisa:
I don’t think you’ve hit on quite the right measure. If A threatens B in a credible way, and B takes action as a result — quits his job and moves to another city, for example — I believe A’s threat should be considered a crime. A exacted nothing from B and had no intention of exacting anything from B, but B’s life was affected none the less. If there’s a test involved, it ought to be based on the loss of the victim, not the gain (real or imagined) of the perpetrator.
This is what Sandefur meant when he described such threats as being the same as flicking your hand in someone’s face to make them flinch. Both actions cause the victim to take action to protect themselves, out of fear, demonstrating the plausibility of the threat.
That’s a good point, Tedd – I imagined that I must have been missing something.
Still…I will need to think about it some more, but meanwhile I’ll just throw it out here just the same: what if I threaten someone who honestly believes in the supernatural, with putting a deadly curse on that person? What if enough of the members of the community and the jury hold similar beliefs?
Yes, but Tedd, what about “Ooooh, you said something that SCARED me! I’m going to make you pay for that!”
Surely a threat ought to be reasonably credible before the Law should take an interest. The fact that the person who felt threatened was frightened into moving to Davis Junction in order to feel safer is no measure of whether the alleged threatener actually issued a threat, let alone a credible one. (I’m not talking about the specific case here; I’m making a general point.)
The purpose of the law is to protect us from force and fraud, not from unpleasant emotional experiences which don’t in fact come from either. If I’m so mad that I make a move to punch your lights out, but then re-establish my self-control and quit mid-swing, ought I to be punished just as if I’d given you the drubbing I thought you deserved?
If so, why not go ahead and do it? Sheep as a lamb and all that. (Of course, perhaps I’m just naturally saintly and that’s why I stopped. *g*)
If there’s a reasonable possibility that the threatener might be serious, than at least a restraining order might be called for. But it goes against the whole philosophy and common understanding of our two countries that we punish people in advance for crimes they might perhaps commit, as opposed to trying to prevent them from committing crimes that they actually seem intent upon committing.
Exactly, Alisa. And the hand flicked in the face to cause the flinch, which is mostly a reflex, may be rude and obnoxious and perhaps you should cut the person out of your will, but if in fact he doesn’t come anywhere near connecting and isn’t trying to start an actual fight, I think the rule has to be “no harm, only a minor foul. At most, ejected from the building for improper conduct.
Yes Julie, that’s more or less it.
My point about purposes which Tedd contested was not a legal but a practical one. There is a reason and a purpose for everything we do, even when those reasons and purposes are not always clear or seem reasonable to others (or even to ourselves). There may be several reasons why people threaten others with violence. I mentioned the most obvious one (to me, at least) before: trying to make someone else do or not do something. In cases of separated couples it may be something like ‘Let me see the kids/come back home – or else’. Etc. But my question is: is a person who truly intends to commit a violent act with no apparent reason or for no apparent purpose (note the apparent part) likely to precede his violent act with a threat of the same? And if so, why? I just think that we need to understand how reality works, before we write laws attempting to make that reality more bearable to all of us.
I cannot but feel, that our education system, including parents, is producing a growing amount of little mimosas with no concept of humour or robustness at all, totally unprepared for a world where well-meaning is in no way guaranteed. If that’s true, we do our children a very bad service.
Julie, if you swing your fist at me (and I reasonably believe that you intend to do me harm) you have committed a common law assault. If your fist actually connects with my face, you’ve committed a common law battery. Those are two separate crimes (as well as being torts), and in general the latter is the more serious (which is why this is not a “sheep as a lamb” thing). The assault has occurred whether or not you connect; a battery can occur even if I don’t see it coming (so there’s technically no assault).
As I said in my earlier post, the question is whether the recipient of the threat reasonably believed that a threat was made, and that it is a credible one (i.e., that the maker is capable of carrying it out). Those are questions of fact for a jury. Note that the intention of the person making the threat is not germane to the question (so claiming that it was a joke is not a sufficient defense); what matters is whether the victim believed that the threat was real, and whether that belief was in fact reasonable under the totality of the circumstances. And the manner in which the threat was delivered (either directly or via a third party) is also irrelevant, as long as it is real and credible.
Then what about the curse and all that, Laird?
I believe that in England the standard is not whether the alleged victim felt threatened, but whether a “person of ordinary firmness” would have felt threatened in the circumstances. That seems entirely reasonable and covers the issue that people may pretend to have felt afraid.
Alisa,
In parts of Africa penis theft by Witch-doctors is rife. Of course it is total bollocks but people believe these shamanic types and even after medical examination by a proper medical doctor still insist that some curse or woo-woo deprived them of their old-chap. Even when it is manifestly obvious that they have a penis.
I am almost tempted to ref Tristram Shandy – the origin of the term “cock and bull story”. I don’t know how though.
But, ultimately this is sort of addressing your question (sort of) in that superstition (and I don’t mean religion per-se) can be incredibly powerful. It can make people believe what is not only physically impossible but obvious empirically. I mean either you have a penis or you don’t and it being an external organ it’s fairly obvious.