Should We Police Threats On Social Media?

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The United States has a well-developed jurisprudence for dealing with people who make threats. The default presumption, thanks to the First Amendment, is that any speech, even speech that is frightening, prejudiced or factually wrong, is legal. Even a generic desire for the President to die has First Amendment protection. The key precedents here are Watts v. United States and Brandenburg v. Ohio, both from 1969. In Watts, an 18-year-old remarked during a rally against the draft that:

“They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.”

The ruling suggested that this was protected as merely ‘a kind of very crude offensive method of stating a political opposition to the President’, of a kind still very familiar to us today. Those prosecuted for threatening the President over the last few years have typically had additional evidence of actual conspiracy to commit murder.

In Brandenburg, a KKK leader’s advocacy of ethnic violence was ruled to be protected by the First Amendment, because it was not “directed to inciting” or “likely to incite, imminent lawless action.” There must be some specificity as to the time that the lawless action is to occur; it cannot simply be a generalized articulation of the need for violence at some future time. It must be, in other words, a so-called “true threat.”

These rulings have stood essentially unmodified for nearly half a century. They are also a lot more protective of threatening speech than most people, including surveillance state employees, casually assume. One result of that assumption is that surveillance agencies pro-actively monitor social media, and open investigations on the basis of First Amendment-protected threats they encounter, when the constitutionality of doing so is at best highly suspect.

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Curious July 4 Twitter threat case leads to house search, charges (Arlington, MA)

Let me tell you about Travis Corcoran.

Corcoran lives in Arlington, Mass., and till July 4 of this year, the self-described “anarcho-capitalist” made his living running comic book store Heavy Ink. He first ran into trouble after the shooting of Congressman Gabby Giffords, when he posted the following:

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In response, the police apparently temporarily took Corcoran’s firearms license, and some customers of Heavy Ink organized a boycott.

On July 4, in an apparent response to the heavy security measures proposed for the Esplanade, he made another violently-themed tweet:

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Unlike with the Long Island case, Corcoran was not simply searching for something that someone malevolent might also search for: anybody could do that. He was fantasizing about violence, but in a way that is not specific to any named individual. So let’s have a look at the law on such threats, and then I’ll let you know what has happened to Corcoran. I’d welcome your thoughts on what should have happened.

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