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GeorgiaDon

Free speach = freedom to terrorize?

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The Supreme Court rendered an interesting "decision" regarding the case of a guy who was convicted of using social media to threaten his ex-wife, co-workers, law enforcement, and even to threaten an attack on a school. Every person who was a target of his postings took his words as a threat (to shoot them, or to plant a bomb, or to cut their throats and watch them bleed out), and he was convicted on the grounds that any reasonable person would understand his words to convey a threat. He appealed on the grounds that the "reasonable person" standard was insufficient, that the state should have to prove that he intended to make a threat, and the SC agreed. So now (it seems to me) the judicial system has to look past the plain meaning of words and attempt to read the mind of the creator of the writings, and divine (and be able to prove) whether or not there was a deliberate intent to terrorize people or actually carry out the threat.

Years ago I worked in a lab where one of the lab techs hated grad students, especially female grad students. One time he said to one of the female students "I know you live in an apartment at xxx address, I know you need to use a key you keep in your purse to unlock the front door, I know the overhead light has been burnt out for months, and I know there are bushes on both sides of the entrance. You'd better watch your back because one day someone will be in those bushes waiting for you, and you won't like what happens." He said this kind of thing to the female students frequently, but usually it came down to their word against his. Fortunately this time he said this within earshot of a couple of other students, who he didn't realize were just around the corner. He was subsequently fired, but Sue (the student who he was talking to) realized he had been watching her come and go from her apartment for several months, and was so afraid of him that she paid a lot of money to break her lease and move.

Considering this Supreme Court decision, he could have just argued he was offering friendly advice, and had no intent to threaten anyone. It's her problem if she "took it that way", right?

I wonder if, in light of this decision, law enforcement can even investigate if, for example, a student posts online about an intent to shoot up a school? How can you prove whether or not someone really intends to carry out what they say they are going to do, short of letting them actually do it (or try to)? Can the police even come to your house and question you if they are not sure a crime has been committed?

The Court did not state the line that would have to be crossed for someone to be convicted of uttering threats, the standard the State would have to meet, leaving things in a completely ambiguous state. It pains me greatly to agree with Scalia (who wrote "But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.") or with Thomas (who wrote the court's "failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.").

Is it now OK (from a legal perspective) to shout "Fire" in a crowded theater? Should people have to somehow discern if you were making a joke or intentionally trying to cause a panic? How about telling a flight attendant you have a bomb and are going to blow up the airplane? Making a threat, or quoting a movie?

Do bullies now have cart blanche to terrorize their targets?

What do you all think of this decision?

Don
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Tolerance is the cost we must pay for our adventure in liberty. (Dworkin, 1996)
“Education is not filling a bucket, but lighting a fire.” (Yeats)

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http://www.supremecourt.gov/opinions/14pdf/13-983_7l48.pdf

This is more a matter of proof than anything. The guy was convicted under a negligence standard. The SCOTUS (Thomas excepted) found that negligence isn't enough to meet "scienter."

The SCOTUS basically said this: you can't convict someone for being negligent in communications that were perceived as a threat. That's a civil tort burden of proof. In order to send a guy to jail/prison, you have to prove that he INTENDED there to be a threat and perception of a threat.

The instructions given to the jury only required negligence. And there isn't a crime for negligently threatening somebody. The prosecution must prove intentional threats.

It's a matter of procedure and burden of proof. And the statute requires intent or knowledge of it. If the prosecutors could have proven intent or knowledge of the likely perception of the threat then the prosecution should have proven it. And the jury instructed on it.

The prosecution didn't do that. That is all. In this statute the prosecution must prove intent. Not just effect.

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How about telling a flight attendant you have a bomb and are going to blow up the airplane?



SO long as the prosecution can prove that you had knowledge of the likely effect then you'd be convicted. If, however, the inflight entertainment was "I, Frankenstein" and you told the person in the next seat that it was a bomb, then the prosecution would have a harder time. Even if you are a hairy Arab.


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I agree that the legal standard is and should be that of "mens rea" ("guilty mind"), i.e, not whether his postings were reasonably perceived by his wife as a direct threat from him to her, but whether he actually intended it to be perceived by her as a threat from him to her - that mere negligence alone is not enough, there must be actual intent.

That said, my gut tells me that's exactly what he intended, so I think he deserved his time in stir.

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Andy9o8

I agree that the legal standard is and should be that of "mens rea" ("guilty mind"), i.e, not whether his postings were was reasonably perceived by his wife as a direct threat from him to her, but whether he actually intended it to be perceived by her as a threat from him to her - that mere negligence alone is not enough.

That said, my gut tells me that's exactly what he intended, so I think he deserved his time in stir.



I agree. The prosecution just didn't prove it.


My wife is hotter than your wife.

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lawrocket

***I agree that the legal standard is and should be that of "mens rea" ("guilty mind"), i.e, not whether his postings were was reasonably perceived by his wife as a direct threat from him to her, but whether he actually intended it to be perceived by her as a threat from him to her - that mere negligence alone is not enough.

That said, my gut tells me that's exactly what he intended, so I think he deserved his time in stir.



I agree. The prosecution just didn't prove it.Thanks guys. I was hoping you'd weigh in.

So, how can you prove a "guilty mind", short of allowing the threatened behavior to take place? Do we have to wait for this guy's ex-wife to find out first hand if a folded up restraining order can stop a bullet? What sort of evidence short of that could prove that the guy had a "guilty mind"?

In the example of the lab tech/student I cited, the student had to move, and she felt she was forced to cut short her PhD and settle for a Master's degree so she could finish up and move to another city (although to that point she had loved where she was living) just to get away from this guy. Her whole career and subsequent life were altered by this creep, and she was not the only person he affected that way.

If one has to prove intent, what does this say about other crimes associated with behavior that is so reckless any reasonable person would know it is likely to injure or kill someone? Can I drop TVs off of buildings onto the crowded sidewalk below and argue I didn't intend to hurt anyone, I was just throwing away an old TV? Surely the guy who consumes 14 beers and then gets behind the wheel didn't intend to kill that family, so why should he be held responsible if "shit happens"? Even if any reasonable person knows that such actions are likely to result in "shit happening", should the courts have to prove those people were aware of the likelihood of "shit happening", and made a conscious decision to go ahead anyway?

Is the "reasonable person" standard dead, or should it be? Isn't the whole jury system based (at least in theory) on 12 "reasonable people" weighing the evidence and rendering a decision?

My personal life experience has been that I suck at reading minds. I may or may not be able to guess at motives behind people doing what they do. Generally, I am limited to observing what they do, the outcome, and deciding if that outcome was foreseeable. If the outcome was bad, and was recognizable in advance as a possibility, I have no problem holding people responsible for their choices.

Don
_____________________________________
Tolerance is the cost we must pay for our adventure in liberty. (Dworkin, 1996)
“Education is not filling a bucket, but lighting a fire.” (Yeats)

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lawrocket

***That said, my gut tells me that's exactly what he intended, so I think he deserved his time in stir.



I agree. The prosecution just didn't prove it.

Yeah, this tends to be an irritation when examining cases like this. I think it's the right call for precedent with an unfortunate immediate consequence because the first person it helps was in the wrong.

The words of a threat really can't and shouldn't speak for themselves (particularly when it comes to internet posts) at the very least on account of Poe's law. None of this is to say it's a bad idea to get a warrant and look into a person who writes such things though.

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Some very good points. And yes, proof of intent can be difficult. But I'll defer to Andy on that.

One thing that is based on reasonable feelings of the victim is the temporary restraining order. Since it is civil and not criminal and merely is intended to keep a distance, the burden of proof is different. From. A practical standpoint, no judge wants to read in the paper abiut a woman who got killed after she denied a TRO.

So there are other ways besides a criminal proceeding


My wife is hotter than your wife.

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just on the misspelling - tangent here

why is it "speech", but one "speaks"

we should have consistency

for the children

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

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rehmwa

just on the misspelling - tangent here

why is it "speech", but one "speaks"

we should have consistency

for the children



Don't forget ME!!:$
"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

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Not related, but it made me think of this incident.... Cops and FBI had this guy under terrorism surveillance because of his social media history (I think). And once the guy did something on social media that alerted the FBI, they went to track him down and confront him. He pulled a knife and went after the cops and was shot down dead.

http://www.msn.com/en-us/news/us/police-man-shot-dead-lunged-at-police-officer-fbi-agent/ar-BBkCNUp

Of course, the shitbrick's family says he was shot 3 times in the back, despite the police saying video proves their facts.

Point being, you can't make idle threats on social media targeting people, much less so targeting schools... Maybe this was a special case (terrorism threats)...
There will be no addressing the customers as "Bitches", "Morons" or "Retards"!

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Quote

So, how can you prove a "guilty mind", short of allowing the threatened behavior to take place? Do we have to wait for this guy's ex-wife to find out first hand if a folded up restraining order can stop a bullet? What sort of evidence short of that could prove that the guy had a "guilty mind"?



I'll try to give a straightforward answer. It may not be adequate, but the best I can say is that it's generally seen as more fair and just when liability (whether civil or criminal) requires proof of some manner of wrongful state of mind (whether actual intent, or just extreme recklessness, like your evil twin dropping the TV off the building), and is not just "strict liability", for which wrongful state of mind is not required to be proved.

So how to prove it? Yes, through the very imperfect means of persuading juries of ordinary citizens to do their best to get inside the actor's head. But of course, we do that with people all the time, don't we? When your little kid throws his toy across the room and bops his sister on the head, and then protests "I didn't mean for it to hit her", that - getting inside his head to gauge his actual intent - is the skill you bring into play, right? It requires looking at all the circumstances of the case, and then bringing it together with your intelligence, your life experience, and your judgment (your "gut"). Then you make your best call. So, too, with juries.

My gut, based on my life experience and my judgment, tells me this guy intended to threaten his wife, and for her to perceive it as a threat and to be terrorized by it. I might be wrong. I'm not clairvoyant, and I don't know him or his wife. But I've been alive for over 50 years, I've felt my own and observed others' demeanors for all that time, and I've been married most of my adult life. And, FWIW, I've seen and heard of lots & lots & lots of unbelievably angry estranged couples, and how they sometimes (all too often) act out that rage. So - that's my best call.

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Andy9o8

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...My gut, based on my life experience and my judgment, tells me this guy intended to threaten his wife, and for her to perceive it as a threat and to be terrorized by it. I might be wrong. I'm not clairvoyant, and I don't know him or his wife. But I've been alive for over 50 years, I've felt my own and observed others' demeanors for all that time, and I've been married most of my adult life. And, FWIW, I've seen and heard of lots & lots & lots of unbelievably angry estranged couples, and how they sometimes (all too often) act out that rage. So - that's my best call.



I tend to agree with your gut.

Whether or not he actually intended to carry out those threats, I believe his intent in making those threats was to frighten his wife. To make her fear him and change her behavior as a result.

That doesn't mean he wouldn't have carried out those threats. Domestic troubles have an interesting way of making folks get angry enough that they no longer think about consequences for their actions (or they simply don't care about those consequences).

Can he be retried under the "correct" charges now? Or does this ruling prevent that?
"There are NO situations which do not call for a French Maid outfit." Lucky McSwervy

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Thanks Andy. That makes sense to me. I think a jury could certainly look at the totality of the circumstances and come to a rational decision about his motive (just making up some "rap lyrics" vs trying to terrorize her). I was concerned the ruling meant a jury could no longer use their life experience to weigh the whole of the circumstances, but instead had to have specific evidence such as a diary entry detailing his plan to threaten her and disguise it as rap lyrics to fool the "authorities".

I think the case was sent back to the lower court, rather than being dismissed outright, so I think he could be re-tried, with different instructions to the jury this time.

Don
_____________________________________
Tolerance is the cost we must pay for our adventure in liberty. (Dworkin, 1996)
“Education is not filling a bucket, but lighting a fire.” (Yeats)

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Andy9o8

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I think the case was sent back to the lower court, rather than being dismissed outright



Yes, I see that now. The reversal was based on erroneous trial court instructions to the jury, so the remedy is proper instructions.



Remanded to Third Circuit to determine proper mens rea. Expect the Third to use recklessness and harmless error in instructions if not waiver.


My wife is hotter than your wife.

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