"True threat" or art

Beyond Saving
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"True threat" or art

 It has been a relatively boring year at the Supreme Court compared to last year with hot button issues like gay marriage, the ACA and patenting genes. However, one case that has leaped out at me is Elonis v. United States  This is a free speech case with wide ranging implications for online posting. Elonis was convicted by a jury and sentenced to jail for a little over 3 years because of posts he made on his facebook page threatening his ex-wife, ex-coworkers, a classroom of kindergarteners, and an FBI agent who was investigating the previous threats. Elonis' defense is that the posts were rap lyrics he composed and it may or may not be relevant that he posted them under a pseudonym "Tone Dougie" and included several disclaimers on his page that the lyrics were fictional and meant for artistic purposes.

The legal issue is that the jury was instructed to convict if a "reasonable" person would interpret the words as a threat. The plaintiffs are arguing that this standard is too vague and that the prosecution should be forced to prove subjective intent to threaten.

The interesting thing about this case is that none of the speech in question was political. Historically, the court has given a lot of leeway towards what can be said that can be considered political hyperbole, allowing for rather violent political speech. While the rant at police and threatening to bomb them might be political hyperbole, the threats towards his ex are clearly a personal, not political subject. 

Clearly, facebook can be, and is used as a tool by abusers to intimidate or threaten current or previous significant others. I think we can all agree that such speech is not protected by the first amendment. The difficulty is creating a standard by which to fairly determine when speech crosses the line into unprotected speech. I'm sure everyone here has had someone somewhere on the internet wish them dead, or even make direct threats or say that an entire class of people should be killed. It woukd be a pretty significant waste of resources to go around arresting every asshole troll, and as seen in Canada, laws that allow people to be arrested for hate or aggressive speech are not equally applied. (In Canada, 100% of hate speech cases were against white supremecists, does anyone believe that is the only political position that engages in threatening hate speech?) And that is why Elonis is getting support from a variety of groups from prolife groups to PETA and the ACLU.

www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/13-983_pet.authcheckdam.pdf

The actual posts in question are listed and quoted starting on page 25. Imo, this is an opportunity for the Court to reinforce the idea of subjective intent, at the same time, the Court could either rule that Elonis had subjective intent or order a new trial with different jury instructions. While the early broad threats are vague and unrealistic, when he posted following his ex wife getting a protective order "Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet? Try to enforce an order." Now you are talking a specific and plausible threat against someone who has affirmatively demonstrated that they fear him. To me, that is pretty solid evidence of subjective intent whether you surround it with disclaimers or not. And I don't think that singing it to a tune or in this case rapping it out if tune, magically changes it to art. I suspect that most juries would decide the same. That is one way the court could reinforce free speech, yet still send this bag of shit to jail.

 

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X


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Still reading up on

Still reading up on "terroristic threat" which is a misdemeanor in Texas, excluding other factors.   Not defending this douche but to me it seems counterproductive, if not downright stupid,  to threaten someone beforehand if you actually intend to attack them. 

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ProzacDeathWish wrote:Still

ProzacDeathWish wrote:

Still reading up on "terroristic threat" which is a misdemeanor in Texas, excluding other factors.   Not defending this douche but to me it seems counterproductive, if not downright stupid,  to threaten someone beforehand if you actually intend to attack them. 

I agree, but this guy clearly isn't going to be winning any awards for his brilliance either. It is amazing how many people post their crimes on facebook. Some glittering jewels of stupidity have even posted videos of themselves committing crimes.

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X


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The only real difference

The only real difference between this and the shit eminem pulled a few years ago is that eminem actually produced albums. He is the most extreme example I'm aware of, but other artists have brought their personal feuds up in theatre and music as well.
Fact is, this was a very nasty thing to do, but not an illegal thing to do.

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www.scotusblog.com/2015/06/op

www.scotusblog.com/2015/06/opinion-analysis-internet-threats-still-in-legal-limbo/

This case has been decided, the Court threw out the conviction, ruling that the jury instructions that they should convict if a 'reasonable person' could interpret the comments as a threat. They were very murky on what exactly is required, but there must be at least some evidence of intent to threaten. This particular case is back the the appeals court, where they can dismiss or hold a second trial.

In other SCOTUS news, the Court ruled in a religious EEOC case against Ambercrombie & Fitch. The case involves a Muslim woman who showed up for a job interview wearing her head scarf. She didn't get the job, and when a friend who was an employee asked the manager why, the manager told her that her friends wardrobe wasn't compliant with company policy (which apparently bans all hats, scarfs or any other head covers apparently they are not in style). The Muslim woman sued and was awarded $20k. The Court ruled against Ambercrombie, despite the applicant never informing the interviewer about her religion or requesting accommodation. 

This brings up a perplexing problem, because it is illegal to ask an applicant their religion, yet you can now be sued by someone if your reason to refuse to hire someone is related to their religious practice, regardless of whether you knew it was a religious practice and not a personal preference. Apparently, employers are now supposed to be prejudiced and assume that every woman wearing a scarf is Muslim. What I find most offensive, is that someone who wears what they want can (and often is) turned down for employment based on how they dress. I don't see why any religion should get an exception. If you work selling Ambercrombie, you should wear Ambercrombie style clothes to the interview. If you apply for a job at a suit company, you better be wearing a nice suit to the interview. Someone needs to create a religion that requires wearing ripped jeans, you will have millions of followers.

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X


Vastet
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I think it should be illegal

I think it should be illegal to hide your face in public without a practical reason to do so (like it's -40 outside, or you're allergic to sunlight). I'd never hire someone who wore a mask of any kind to an interview.

Of course I'd never tell anyone why I refused to hire someone in that situation, because of cases like this. I'd conduct a regular interview and tell the person they'd hear from me if they were likely to get the job, and that would be the end of it.

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Vastet wrote:I think it

Vastet wrote:
I think it should be illegal to hide your face in public without a practical reason to do so (like it's -40 outside, or you're allergic to sunlight). I'd never hire someone who wore a mask of any kind to an interview. Of course I'd never tell anyone why I refused to hire someone in that situation, because of cases like this. I'd conduct a regular interview and tell the person they'd hear from me if they were likely to get the job, and that would be the end of it.

Yeah CYA rule number one in hiring is never tell anyone your reasons for hiring or not hiring anyone. Saying anything is inviting a lawsuit.

If, if a white man puts his arm around me voluntarily, that's brotherhood. But if you - if you hold a gun on him and make him embrace me and pretend to be friendly or brotherly toward me, then that's not brotherhood, that's hypocrisy.- Malcolm X