by Ken White
November 16, 2016
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So. Thank goodness everyone seems to be going about this really calmly.
Dateline: Rutgers. Kevin Allred, a professor of Beyoncé Studies, is not taking recent news philosophically. In the course of a rant he offers these:
if i see any Trump bumper stickers on the road today, my brakes will go out and i'll run you off the road.
7:35 AM - 9 Nov 2016
“Will the 2nd amendment be as cool when I buy a gun and start shooting at random white people or no…?”
11:20 PM - 9 Nov 2016
Days later, the NYPD shows up at his home and hauls him off to Bellvue for a psychiatric evaluation.
Analysis of when law enforcement can detain you and forcibly commit you for psychiatric evaluation is complicated and beyond the scope of this post. Let's look at the easier question: were those tweets illegal threats, or protected by the First Amendment?
The answer: they're probably protected speech. Remember, only "true threats" are outside the scope of First Amendment protection. A statement is only a "true threat" if a reasonable person would interpret the words, in their context, as an expression of actual intent to do harm. In addition, the speaker must either intend that the words be taken as a statement of intent to do harm, or at least must be reckless about whether or not they would be interpreted that way (that's still a bit up in the air, legally).
Here, the context is a tweet rant by a Rutgers professor. The Second Amendment tweet is part of a rant about gun control, and the bumper sticker tweet is part of an attack of intellectual and emotional incontinence about Trump. Neither threatens a specific target and both sound figurative and hyperbolic. So: the government probably can't satisfy the objective test (that a reasonable person would read these as sincere threats), let alone the subjective test (what he intended). It's likely protected by the First Amendment. Legally.
Practically, this sort of thing will get you arrested, if someone happens to catch a cop's attention with it. Stuff that is far more clearly satirical results in arrest and prosecution all of the time. Usually the people arrested are a lot less privileged than a Rutgers professor, and it's much easier to be arrested if you say something mean about police officers. But these tweets were close enough to the line (especially read out of context, as cops tend to read such things in the heat of the moment) that an arrest isn't surprising. You might even wind up having to take a case like this to trial if you get charged. Allred's threatening to sue — but if it's on the theory that his speech was protected, he'll probably lose, because the speech is close enough to the line that the cops are likely protected by qualified immunity even if a judge agrees that the tweets were only hyperbole.
I think that the tweets should be protected, embedded as they are in a figurative expression of rage. But Allred's an asshole. If I were one of his co-workers, or students, I would be a little worried about being around him, because I wouldn't be sure that these are hyperbole. If I were his employer, I'd spend the whole day dealing with the fallout and trying to weigh risk and liability and the fears of other employees.
(The flip side is that far worse stuff gets said online all the time without anyone taking action — because law enforcement is arbitrary and capricious.)
Dateline: San Diego. Matt Harrigan, founder of PacketSled, is nonplussed:
I'm going to kill the president. Elect.
Bring it secret service.
Nope, getting a sniper rifle and perching myself where it counts. Find a bedroom in the whitehouse that suits you motherfucker. I'll find you
In no uncertain terms, fuck you America. Seriously. Fuck off.
This ends with Harrigan resigning his position and, I suspect, waiting for a visit from the Secret Service.
This, too, was likely protected speech. As I explained in 2012 when jackasses were incensed over Obama's reelection, threats against a President or President-elect are subject to a true threats analysis as well. Under the federal statute prohibiting such threats, there are two questions: (1) would the statement be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure the official? and (2) did the defendant intend that the statement be understood as a threat?
Here, Harrigan was talking to Facebook followers, and the statements were part of a stream of rage. Despite the fact that he offered details about how he would kill President-Elect Trump, given the context and audience reasonable people probably wouldn't take this as a genuine statement of intent to do harm, and it would be difficult to prove he meant it that way. People familiar with the context would likely interpret it as the venting of someone who is accustomed to getting his way suddenly being thwarted. Therefore it's likely protected by the First Amendment, and because it's part of hyperbole, ought to be. But it's damned close to the line.
Once again, this sort of outburst gets people arrested all the time. Sometimes it gets people charged. Sometimes it results in convictions. Harrigan is well-positioned to skate because he's an affluent white techbro on Facebook. If you're a disturbed jobless nobody or a prisoner, you may get convicted, even though objective analysis ought to suggest that your rant is even more impotent and unlikely than Harrigan's. "Reasonable person" analysis tends to discredit threats from people like Harrigan and Allred and credit threats from people who are offensively dark, poor, incarcerated, or unbalanced in a way that does not lead to tenure. That's the way the system works. Sorry, no refunds.