Framing Context, Anonymous Internet Speech, and Intent: New Uncertainty About the Constitutional Test for True Threats
76 Pages Posted: 14 Aug 2012
Date Written: 2011
When you hear a speech at a political rally, there is a readily identifiable framing context, a set of shared, publicly observable background facts that inform your analysis of whether the speech constitutes a threat. For example, the statement “If they make me carry a rifle, the first man I want to get in my sights is L.B.J.” when made at an anti-war demonstration on the Washington Mall in 1969 was not, as a matter of law, a threat, because of the framing context. That context included the location of the speech, the nature of the gathering, identity of the speaker, the demeanor of the speaker (including the fact that he was not armed), and the reaction of crowd (laughter). For the Supreme Court, it was an easy case: the statement was not a threat on either a subjective test (did the speaker specifically intend the statement to be interpreted as a threat?) or an objective test (would a reasonable person interpret the statement as a threat?)
But what about the following statement, made anonymously on an internet message board a week before the 2008 election: “Re. Obama, fuck the niggar, he’ll have a .50 cal in the head soon... Shoot the nig”? How is that statement to be evaluated on the “true threat” test? At the time the statement is made, the audience does not know who the speaker is or where he is, cannot observe his demeanor, and does not whether he is armed. As for the nature of the gathering, it is a publicly accessible internet forum. The audience could be one person or a million people; they are as hidden and anonymous as the speaker. And as for the reaction of the crowd, the only information there is the reaction of other posters if they respond to the original statement. How should the “true threat” analysis work on these facts?
In July 2011, in United States v. Bagdasarian, the Ninth Circuit decided that the above internet posting was not a threat as a matter of law. In so holding, the court announced a fundamental change in First Amendment law. The court announced that the reasonable-person objective test is no longer the constitutional floor for “true threats”; the new doctrine is that subjective intent is a constitutional requirement for any threat prosecution. The case forces us to confront the basic question of what a threat is -- and how threats cases can be proved -- in the context of anonymous internet speech.
In this Article, I explain the current state of the law on the mens rea for threats, the holding and scope of Black, and the potential ramifications of the Ninth Circuit’s new decision. I then offer my own proposals for defining threats -- both as a constitutional and a linguistic matter -- and for taking account of varying degrees of culpability.
The two major contributions of this article to the existing literature are that it analyzes the recent Bagdasarian decision and its potential significance for First Amendment law; and that it makes a serious attempt to examine the concept of a “negligent threat” from both a philosophical and a criminal-law perspective.
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