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Suppose that, one day, you found this message directed at you on Facebook:

“Fold up your [protection order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
that was improperly granted in the first place
Me thinks the Judge needs an education
on true threat jurisprudence
And prison time’ll add zeros to my settlement . . .
And if worse comes to worse
I’ve got enough explosives
to take care of the State Police and the Sheriff ’s Department.”

Should we act to prevent such messages from reaching you? The most sensible answer seems to be “yes.”

First, we’ll assume this is a legitimate threat, either to you or the intended recipient. On the surface, it might actually seem like a good idea to receive this, as it’ll alert you to what might have been an unknown threat, but that’s treating the symptoms instead of the disease. This person would not have sent the message if they did not intend to murder, and they should not intend to murder. By association, they should not have sent this message.

But that brings up the other case: if the sender didn’t intend to murder, despite what they wrote, should they have sent it? Let’s break this down further: either you’re reasonably confident they don’t intend to carry out the threat, you can’t assign any certainty, or you think it’s at least plausible.

If you think it’s plausible, though, then we’re back no where we were before; you can’t see into their mind and be assured it wasn’t meant, therefore you have no evidence that it wasn’t sincere, and some suggesting it was sincere.

If you can’t assign any certainty, you’re ignoring all the times someone did telegraph their plans to murder. Estimating a certainty is no tougher than dividing all the times these messages were acted on, by the number of messages sent.

If you’re confident there is no threat, why did this person bother to send it to you? The message can only lower your confidence that they’d never act, because you know they spent time and effort to craft it. Those words carry some level of value to the sender, and given their content that’s not a value we should be encouraging.

No matter how you slice it, allowing these messages provides no benefit yet extracts a cost; conversely, restricting these messages provides great benefit for very little cost. So where possible, we should discourage these messages.

Yet when the US Supreme Court was confronted with this case, they first agreed that whether or not something is a threat cannot depend on someone’s mental state, then pivoted 180 degrees and stated that someone’s mental state was a necessary condition as to whether or not they were making a threat.

[the relevant legal code] does not indicate whether the defendant must intend that the communication contain a threat, and the parties can show no indication of a particular mental state requirement in the statute’s text. Elonis claims that the word “threat,” by definition, conveys the intent to inflict harm. But common definitions of “threat” speak to what the statement conveys—not to the author’s mental state. […]

The Court does not regard “mere omission from a criminal enactment of any mention of criminal intent” as dispensing with such a requirement. … This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal,” and that a defendant must be “blameworthy in mind” before he can be found guilty. … The “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.”

… I just don’t get you, America. Why do you fetishize free speech so much that you consider plausible threats to be protected speech? What do you gain by allowing private citizens to terrorize one another?

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