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.
There is plenty of evidence for this. In our recent FOIA request to the Commonwealth Fusion Center, for example, we found that the single largest specific category of their Suspicious Activity Reports – 47 out of 237 – was for “Explicit / Implicit Threats”, making it clear that threat monitoring is a major part of their work. This is reinforced by the fact that the Commonwealth Fusion Center cites a pretty dubious threat case to lawmakers as the key exemplar of its effectiveness. The fusion center’s guidelines are very weak, and say simply that they cannot open an investigation solely on the basis of First Amendment-protected speech, but it looks like that’s pretty much exactly what the Commonwealth Fusion Center did in that case.
Depending on the ruling in the Elonis case that the Supreme Court is now hearing, surveillance agencies may have their threat management practices explicitly made constitutional or (less likely) explicitly barred. Defendant Anthony Elonis was indicted in federal court on five counts of interstate communication of illegal threats, and has been in prison now for three years, based on Facebook posts such as:
“There’s one way to love ya but a thousand ways to kill ya, And I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, b****.”
Sigh. Out of all the threat cases, in all the country, they had to choose this one. The fact that the Supreme Court chose this threat case, with its unsympathetic defendant, out of the many they could have chosen, suggests that at least four justices are interested in narrowing freedom of speech online, not broadening it. I have no doubt that the surveillance agencies would infinitely prefer the state of First Amendment threat jurisprudence prior to 1969, when people could be convicted of crimes simply because of association with political undesirables (Whitney v. California (1927))
Elonis is arguing that, because he chose to couch his threats in the form of rap lyrics, he cannot be prosecuted for his artistic expression. There’s no word on whether he would claim that the dead body of his wife was a piece of installation art if he had succeeded. But, as is often the case with unsympathetic defendants, the questions of law are indeed interesting.
Would a “reasonable person” interpret his statements as a serious expression of an intent to inflict bodily injury? Currently, rap lyrics by defendants – and only rap lyrics, not plays or novels – are often introduced by prosecutors as evidence of criminal intent. Prosecutors cannot introduce evidence from plays or novels that defendants have written as if they were non-fiction windows into the author’s mind. Most of Stephen King‘s novels probably constitute an express or implied threat if viewed with a sufficiently jaundiced eye. Maybe the Maine fusion center should get on that. Perhaps, though, the law’s hypothetical “reasonable person” now understands that rap is indeed a form of artistic expression that cannot necessarily indicate the defendant’s state of mind?
A second question: Does it matter that Elonis posted a disclaimer that these were only rap lyrics? Would it matter if Elonis had also, like Cameron d’Ambrosio, posted other rap lyrics that were not threats, or does introducing that kind of question revive the discredited “bad tendency” test that Brandenburg overturned?
As a last question: Would it matter if the facts were different, and Elonis was making a threat of political, rather than personal violence? Under current law, that does indeed matter: People who express support for acts of political violence are much more likely to hear from the surveillance agencies than people who do not, and, thanks to the looseness of material support for terrorism laws, find themselves in prison for speech that is interpreted as materially supporting; and the Supreme Court refused earlier this year to hear the key case on whether that conflicted with the First Amendment.
In a broader sense, Elonis forces us to consider what kind of powers we want law enforcement to have to charge people for online speech. The case offers us no evidence that Elonis took concrete steps to actually kill his wife. His posts were – quite reasonably – very frightening things for his wife to read, and caused her reasonable fear for her life. But I have very deep misgivings about subjecting someone to criminal prosecution merely for talking about, rather than committing, violence. Perhaps if police departments had already dealt with the vast numbers of unsolved actual murders and unsolved actual rapes, I might be more sympathetic to the notion that this kind of pre-crime is appropriate for police departments to investigate; but as things stand, it makes me suspect that Elonis was prosecuted because he was the hater in the hand, not the murderer hiding in the bush.