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Supreme Court gives Facebook 'rapper' second chance in threat case

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Is it "art therapy" or a crime to make violent threats against your ex-wife on social media? The Supreme Court just ruled that the government cannot MERELY use the "would a reasonable person think this was a threat?" test of the bad act without regard to the guilty mind of the perpetrator. The case will be sent back to the appeals court to determine whether the defendant -- who has already completed his sentence in Federal prison -- was "malevolent or reckless" in his intentions.

Violent threats are not art. It's unfortunate that this is under debate.

No this is important to our history as a speech-tolerating nation. But here are some deeper analyses showing why this decision is actually potentially good for protecting free speech AND the desire of people not to be threatened by others.

Thanks for that link. You're right, this is an important landmark in establishing what constitutes a threat online -- and what constitutes recklessness:

Here’s the biggest: Elonis claimed that for a jury to conclude that his statements were threats, prosecutors had to prove that he intended them as threats — that they had to show he wasn’t joking or writing fanfic or otherwise screwing with his audience.

The court rejected that argument. Flatly.

This is the first victory in the opinion, and it’s a big one. The court said that a threat counts as a threat under federal law not only if it’s intended as a threat, but also if the writer knows it will be interpreted that way:

There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.

Note that “there is no dispute” language. If you make a threat online, and you know the person who receives it will see it as a threat, you’re guilty of violating federal law. It doesn’t matter if you claim that it’s protected speech, or put a smiley face at the end, or point out later that the threat was really just lyrics from an old Beatles song. If you send a threat and you know it’ll be interpreted as a threat, you’re guilty. Period.

That one sentence will serve as a tremendous weapon in online disputes over threatening speech from today forward. “There is no dispute.” And there is no dispute — the majority opinion in which that sentence appears was signed by seven of the nine justices, and neither of the two who dissented from the opinion of the court disagreed with that aspect of it. It’s unanimous.

And it’s also not the end. Because there’s another possible way of understanding legal culpability here, and while the court didn’t explicitly address that one, they strongly hinted — with backup from an unexpected source — that they’re likely to resolve it in a way that favors those targeted by such threats.

The issue here is the legal standard of recklessness — in essence, willful disregard of the risk of a particular consequence. You can think of it this way:

Elonis said that unless he intended the threat as a true threat, he was innocent. The court knocked that down. He also said that if he merely knew it would be taken seriously, but didn’t mean it seriously, he was innocent. The court knocked that down too. The prosecutors said it didn’t matter what he was thinking, and the court rejected that analysis as well. But it turns out that there’s another way of framing the issue — a way of splitting the difference between the prosecutors’ interpretation and the defense’s — and that’s recklessness.

If he knew his comments would be taken as threats, he was guilty, whether he meant that way or not. But what if he knew they might be taken as threats, but didn’t care? That’s the recklessness standard, and it’s going to be a big deal in future prosecutions.

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