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
