This is a really big deal and the story deserves more coverage since apparently it happens all the time. Who would have thought that we have to continue to foment for free speech even in 2015, but apparently we have to!
because like in the recent AIG case the government knows it can operate effectively by ignore laws, abusing them, and so on, because it never has to pay for such transgressions. No loses their position, no one is punished, and the agency which executes such actions is never held in accounts.
So much like all the stories we here about people losing their life savings to police and other government agencies it all comes down to insufficient laws preventing such behavior; there literally is no recourse.
Free speech doesn't include yelling fire in a crowded theater, nor does it include making suggestions of physical violence against a judge.
This entire argument seems to revolve around the author's subjective notion of a 'credible threat,' but describing a specific act of physical violence (putting a human through a wood-chipper) against a specific person who also happens to be a public official (a sitting U.S. judge) could cause that person, if they are reasonable, to feel that their life was in danger. That's the standard.
Edit: or cause other reasonable people to believe that the individual's life was in danger
The exception to free speech for threats is "true threats". To prosecute a "true threat", the state must establish one or both of:
* The subjective test, of whether it was the speaker's intent to convince the object of the threat that they were in danger
* The objective test, of whether a reasonable disinterested observer would conclude that the speaker's language telegraphed an intent to actually commit harm.
Threatening to stuff a judge in a wood chipper on an Internet message board clears neither of these two hurdles. It's facially not a true threat. An attempt to investigate it as such is an abuse of prosecutorial power. Hence the uproar.
The internet is a weird place, to be sure, where the standards of what a reasonable person would take to be a true threat are ill defined. But the comments at issue here seem squarely in the vein of: "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." (the comment at issue in Watts v. United States, which held that political hyperbole is not a true threat).
I can see how a reasonable, disinterested person might read these comments either way. Specifically, some of the comments that were supposedly 'obviously' not threatening have to be taken in the context of the entire conversation in which they were made, and clearly some of the comments here are referring to a specific act against a specific person. How do you determine whether these comments 'definitively' telegraph intent? What is the criteria for determining that they definitely don't telegraph intent?
In the case of the "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." comment, you have to closely read the comment to determine that there is no actual intent here, because the entire statement is conditional on the 'If they ever make me carry a rifle..." portion of the sentence, which at the very least makes it not an immediate threat. In some of these comments, there is no such qualification, the presence of which would make it fairly obvious that in this case there is no credible threat.
These comments are not nearly as clear cut or objective as people are making it out to be since you can't determine from the specific language people are using that this is definitely not an immediate threat.
EDIT: A lot of people are modding me down without making a substantive counterargument. Using the text of the comments please highlight the portions that prove objectively that there is no threatening intention please.
You are either completely misunderstanding or misrepresenting the holding in Watts.
The reason the comment about L.B.J was protected was not because the "if X happens" language, but because even crude, hyperbolic political commentary is absolutely protected under US law.
> you can't determine from the specific language people are using that this is definitely not an immediate threat.
"Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."
It is literally right there in the decision, so in fact the conditional language is being considered.
> you can't determine from the specific language people are using that this is definitely not an immediate threat.
That's utterly irrelevant.
How is this utterly irrelevant? it seems to be the substance of the entire legal problem.
1) You keep talking about immediate threats. A true threat does not need to be immediate. You may be conflating this with the related doctrine on incitement. (Basically, speech meant to incite violence is protected unless the violence is imminent. "You should kill the governor this weekend" is basically 100% fine under US law. "You should kill the governor right now" might not be. Yes, US law is weird.)
2) You can't determine from any language that something is definitely not a true threat (or an immediate threat, as you persist on calling it). Language is malleable. My use of the word "malleable" could be a coded reference which means, to those in the know, that you should be hunted down and killed. I mean, it doesn't really sound like it is, but how can you determine that? The answer is that you don't need to. Speech that you "can't determine" isn't a true threat is still protected. It's only when speech rises to the level of being clearly intended to cause fear in the recipient that it might lose its protection. (Which is, incidentally, one of the larger reasons the speech was obviously protected: It wasn't made to the person allegedly being threatened. Comments about a person face a vastly higher bar than comments to a person. If the person who made the woodchipper comment had no reason to think the judge would ever see it, it couldn't have been a true threat.)
In short, the true threats exception is vastly narrower than you seem to think.
The comments are no mere winking references to Fargo so it's seems a little disingenuous to keep talking about the wood chipper. They're listed here, which I'm sure you've read:
I've no trouble being convinced that the way the government is attempting to investigate these comments is ham-handed and excessive.
I have a harder time getting outraged about someone's inalienable right to talk about shooting federal judges and then remain anonymous or avoid any government scrutiny. If you run around the internet saying such things, you are likely to attract government scrutiny and that scrutiny isn't somehow axiomatically unreasonable.
More than one US President has been shot by a random crazy person, and yet SCOTUS held in the landmark Watts case that an idle threat to shoot LBJ didn't qualify as a "true threat".
I don't think people should run around the Internet threatening to shoot people either, and I think threats to shoot people should be taken seriously. But "Its judges like these that should be taken out back and shot" isn't a serious threat; it is, in fact, a figure of speech.
Do you want to systematize the "reasonable person" reasoning here? What are all the factors you might consider in making the assessment? I'll start a list:
1. Lack of stated intent --- someone should be shot, not I am going to shoot.
2. Lack of specific planning or details anywhere in the comments. Someone should be shot tomorrow when they come to court at 8:30AM, vs. simply "someone should be shot".
3. The rhetorical-or-true threat is a single isolated comment from the commenter, not a pattern of comments from that person over time (people make sockpuppets, of course, but the mere act of diffusing a threat over a bunch of sockpuppets argues against it being a true threat).
4. The "threat" echoes a previous comment on the same forum, as in "no, don't shoot the person out back, do it out front so everyone can see" or "no, don't use a gun, use a wood chipper".
5. Obviously: extravagant and silly modes of violence, like wood chippers, or dropping anvils on heads.
6. Jocular tone, or even, really, any non-deliberative non-serious non-specific tone in a comment that shares a forum with previous silly suggestions.
You could flunk all these tests and still not come anywhere near a "true threat", but I'd argue that opening a formal investigation and collecting evidence and issuing subpoenas for comments that flunk any of them is abusive. And so in this case, on the Reason comment threads, there was a complete absence of specifics or even of stated intent. Being happy about the idea of someone being shot makes you an asshole, but it doesn't make you a criminal.
I think the context and outcome matter. Watts made his statement literally on the public square, during discussion after a political rally and the context of his remarks was the draft (in a highly controversial war) and racial inequality. It doesn't get more 'statement of political dissent' than that. What happened to him was unquestionably outrageous and a gross violation of his civil liberties - he was reported by an agent of the Army Counterintelligence Corps who was present(!!) and then charged and convicted.
How well does this case compare? Some asshats on a fringe forum mouthed off about murdering a judge because they didn't like the judge's verdict. I'd bet that then some other, similarly judgement-impaired indivdual reported them to the authorities. What follows is predictable - said authorities, ever paranoid of being accused of having failed to 'connect the dots', put the gears in motion resulting in silly subpoenas, some dickish behaviour by a federal prosecutor and a publication's inability to talk about the investigation for two weeks. Potentially, some imprudent ranters might get to chat with an FBI agent of which nothing will come.
I'm not trying to argue this is somehow an awesome outcome or that it doesn't, once again, highlight some worrisome problems with the power of prosecutors and its potential for abuse. But I just don't see the outrageous abuse of civil liberties, chilling effect, etc the tone of all of popehat's writing on the topic implies.
I don't think it's unreasonable to recognize the problem law enforcement, investigators, procecutors face in such situations - while zillions of internet hyperventilators fill message boards with their threatening but ultimately harmless nonsense, so do the microscopic minority who actually turn out to be violent. Is this incentive to over-react exacerbated by imbalances in prosecutorial power, other systemic issues? Sure. Does this case represent some outrageous assault on civil liberties? Is it entirely trivial to identify 'true' threats on internet message boards by applying a well-reasoned list of bulleted criteria? I'm not convinced of either of those things, at least, not yet.
Ken at Popehat isn't simply angry because a prosecutor is investigating clearly hyperbolic comments on a message board. He's angry because the prosecutor needlessly (and, as it turned out, pointlessly) imposed a gag order on Reason.
The investigation itself was dumb and, I think, a bit abusive. The gag order though was clearly abusive.
If that's abuse "how can you take the abuse you get on a sit?" Ok, I'll take his expert word that the gag order was plainly abusive.
Watts speaking at the Washington monument vs Watts saying something similar at an underground Panthers meeting where everyone is armed to the teeth - trivial distinction to make. Idiot talks shit on the internet? I don't think it's trivial to make the distinction. In fact, that's the exact ambiguity anonymous internet jerks rely on to try to intimidate, say, women whose views they don't like.
But, in the interests of brevity, I'm willing to concede the possibility I'm the proverbial frog blissfully swimming in the cauldron of an imminently boiling police state, suitably seasoned with a generous helping of obviously untrue threats.
>I've no trouble being convinced that the way the government is attempting to investigate these comments is ham-handed and excessive.
>I have a harder time getting outraged about someone's inalienable right to talk about shooting federal judges and then remain anonymous or avoid any government scrutiny.
The reason we should push back on these kinds of investigations is federal agencies sometimes proceed knowing full well the subject isn't doing anything illegal, but they can make someone miserable just through the normal investigative process. The process itself is the punishment they intend to mete out to people who say things they don't like.
The downvotes demonstrate that the community has decided it's so obvious that these aren't threats that it's not even worth explaining. We on the Internet are viewing these comments through the prism of our own experience viewing other online comments, and that experience causes us to "just know" that they aren't threats. "just knowing" is an argument that wouldn't stand up in court, though. Nothing in law is obvious
Free speech doesn't include yelling fire in a crowded theater
This is incorrect. This is a silly characterizations on the limits of free speech (of which some certainly do exist). Ken, the writer at Popehat, has written many times on this very topic. To address the most obvious problem with your statement, free speech DOES include yelling fire in a theater, unless that cry is false.
Further, Ken has also written at great length about what constitutes a "true threat", and demonstrated why NONE of the comments falls into that definition.
Moreover, you pick the most egregious of the statements. Saying that there should be "a special place in hell" for the judge can't possibly be interpreted in that manner. Anyone trying to do so is obviously acting in bad faith.
"Yelling fire in a crowded theater" was originally a metaphor for why we should jail anti-war protestors for handing out anti-draft pamphlets as spies under the Espionage Act; The standard established in Schenck was later overruled in Brandenberg, narrowed severely to describe 'Speech likely to incite imminent lawless action', with implication that this only applies to a riot. Up until the Patriot Act, we were fairly strongly against prescriptive prohibitions on speech, like gag orders; The optimist in me says ten years down the line we probably will be again. The pessimist in me is too busy weeping in a corner for his rights and having repetitive panic attacks to provide constructive criticism.
The fact that the phrase persists is one of the odder facts of Constitutional history, and the original ruling one of the more obviously loathsome of the set. Say what you like about the necessity of getting entangled in WW1, but the Founders would certainly speak strongly on the topic: https://en.wikipedia.org/wiki/George_Washington's_Farewell_A... , and choosing to suspend blatantly obvious First Amendment protections over that, as opposed to some more controversial position, always struck me as an unlikely outcome.
PS: The inner pessimist just perked up to ask what the hell I'm blathering about "speech" this and "speech" that, since we suspended due process entirely when we chose to empower highwaymen with civil asset forfeiture, and what's the point of debating more nuanced problems when that's standing law, when the people in charge think that's Constitutionally valid? Dude's depressing.
And in the case of it being false, the restriction isn't on the grounds of free speech, but is on the grounds of property rights of the theater in which your actions have done damage.
I prefer to apply the principle of charity when replying to others' arguments. You chose the most uncharitable reading of my invocation of the 'silly' 'yelling fire' prohibition. Obviously I'm talking about the situation where it is false - and that is exactly my point. Not all lies or false statements are protected. There is such a thing as prohibited speech. Yelling 'fire' when there is no fire is an example of it.
Furthermore the test is whether a reasonable person believes they could telegraph intent.
The test is - if you, a reasonable person, could reasonably believe that this judge's safety is in question?
I will grant that it seems like the standard is fairly subjective, and libertarians are predictably siding with the expansive free-speech side of this argument, choosing not to read intent into something that other reasonable people might read intent into.
I tend to err on the side of personal safety given that I read these comments as probably not true threats but also not definitely false.
For what it's worth, though, I believe the sentence issued by the judge in question against Ross Ulbricht was unjust and unduly harsh and probably qualifies as cruel and unusual. Still, I don't recommend making suggestions of violence against an individual online, whether joking or not, and I don't think this is as clear cut as many are making it out to be.
Justice Holmes later back-pedaled quite a bit on the fire/theater thing, and the simple quip just is not an accurate statement about how Free Speech works in America.
From another Popehat post (Ken's really serious about this stuff, and goes to great lengths to explain it), talking about Holmes's evolved jurisprudence years after making the fire/theater statement. Quoting:
Holmes' Repentance — Too Little, Too Late
Conventional wisdom says that Holmes rethought his broad support of censorship when he grasped how open-ended it truly was. The next trilogy of cases before the Supreme Court, starting in late 1919, is consistent with that view. Holmes dissented repeatedly as the Supreme Court reaped what he had sown. ...
Holmes, a regretful Dr. Frankenstein struggling against his creation [that is, the fire/theater comment], dissented. He first offered what in my opinion is a disingenuous and utterly unconvincing attempt to distinguish the case from Schenck, abruptly discovering fastidiousness about proof that expression actually has a tendency to cause lawbreaking ...
The damage Holmes inflicted — the malleable and unprincipled standard of censorship he drafted — was not thoroughly rebuffed until a half-century later. Brandenburg v. Ohio states the modern standard
Even correctly quoted with "falsely", the 'crowded theater' example comes from a decision resulting from the successful prosecution of someone handing out fliers opposing the WWI draft.
> The subpoena also covered such obviously harmless comments as: "I hope there is a special place in hell reserved for that horrible woman," and "I'd prefer a hellish place on Earth be reserved for her as well."
You've got to love how the most popular anti-free speech canard actually comes from a Supreme Court justice upholding a man's imprisonment for opposing a military draft.
> Free speech doesn't include yelling fire in a crowded theater,
That is false as a matter of well established US law. That was used as an evocative argument in a long ago debate about what US law should be, and that side lost.
> nor does it include making suggestions of physical violence against a judge.
That is also false as a matter of well established US law.
> describing a specific act of physical violence [...] against a specific person who also happens to be a public official [...] could cause that person, if they are reasonable, to feel that their life was in danger. That's the standard.
That is not the standard.
> Edit: or cause other reasonable people to believe that the individual's life was in danger
That is also not the standard.
This is not a matter of opinion, and this is not a grey area. That's not how the "reasonable person" test actually works, and that's not how the "true threats" exception to the first amendment is actually defined.
I understand that it might seem reasonable to you that someone "could" fear for their life as a result of the comments, or even that any reasonable person could do so, or even that they would. You might even be right. But as a matter of law, that doesn't matter.
Edit: or cause other reasonable people to believe that the individual's life was in danger
Actually I believe the 'reasonable person' test is the standard, though I stated it imprecisely. I guess 'telegraphed the intent to actually commit harm,' is how I'd edit it if I still could as tptacek said.
This is an extremely reasonable point to make, and AFAICT Aqueous wasn't arguing against anyone, just adding context to the discussion. I seriously don't understand why anyone on any side of this issue would downvote any of his comments in this thread. Looking at all sides of an issue is critical, even more so when it's a legal issue, even more so when you vehemently disagree with the legal system about it. No good ever comes from shutting down meaningful conversation about this stuff, all that happens is that people get louder, dumber, more polarized, and vastly less informed. I think most people here are frustrated at what appears to be an abuse of the legal system, and when you're on the outside looking in and wanting to change what you see, it's so freaking important to understand why things are the way they are. If you don't, then you're just setting yourself up to be trivially shouted down by the people on the inside because you don't understand the system, so how could you know how to fix it?
So, he referenced an overturned supreme court case and stated what appears to be like...just his opinion, man.
On the other side, a statement about the standards for threats given by a former federal prosecutor.
So it sure looks like he's just bullshitting about the case. If somehow that's not true, Aqueous should work to improve on conveying that they actually have evidence for what they're saying. Hacker News is overrun with people making "reasonable sounding" points that are just factually wrong. And when they don't bother to offer a real argument for them, downvotes seem in order.
As long as we are making fallacious appeals to authority, we also have here an actual judge who fucking issued the gag order and who approved the subpoena whose justification is under dispute. We might as well look at the argument of these other actual, currently federal lawyers who agree with what I am saying. Everyone here seems so certain of themselves, it's hard to believe there's ever any debate in an actual court of law! We should just start trying cases in the court of Hacker News.
Look, everyone here seems to agree that the 'reasonable person' standard is the standard, though I misstated it in the beginning. My point is simply that two reasonable, disinterested people can disagree about what constitutes a threat. This does not seem to be a belief that justifies personal attacks, but apparently it is.
But I essentially just walked into a room full of knee-jerk libertarians and mumbled that maybe their blanket view of free speech perhaps deserves some scrutiny, especially when we are also discussing violence in a country with a long history of violence (i.e. people making good on threats). As a matter of fact we just had a case last week where an individual made a vague threat in private company, said company didn't make anything of it, and then he went and murdered 9 innocent people.
1) as I understand this, the the judge's decision is not that these are threats, just that you can have a subpoena. As popehat noted, that's different: everyone acknowledges that there is some legal authority for a subpoena. It's just that it's been said to be an abuse of it because these are not true threats.
2) The "reasonable person" standard is not "what Aqueous, HN commentator, thinks a reasonable person would view as a threat", but a legal construct. While reasonable person is an ordinary language term, as these terms are used in courts, they establish precedents and criteria that are used. Ken White mentioned some criteria, tptacek mentioned some others. I don't see you offering any guidance beyond "seems reasonable to me".
3) As for the appeal to authority, you don't understand what that means. If you were citing actual evidence of anything, it might be appropriate to argue that dismissing it was an appeal to authority. But both you and White are basically saying "trust me, I know how the courts treat threats". In that context, the fact that he is a federal prosecutor, and therefore intimately acquainted with what courts do is quite relevant, and the fact that it really sounds like you're just making this up as you go along is also quite relevant. As I said, I do acknowledge that you could be right. It's just that you have absolutely failed to give anyone a reason to think so.
If you assert first order logic is complete, and I say it's not, then it's a good question which of us studied math. If we both try to give proofs/counterexamples, then it's no longer relevant. But this case is much more like the first than the second.
