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Where does free-speech stop and a threat begin: SCOTUS to consider

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The Supreme court is taking up a case called "Elonis v. United States". Among other things, Elonis was posting on Facebook about harming his ex-wife and about shooting a kindergarten class. After the FBI visited him about these posts, he posted that he had a bomb strapped to his body and would have detonated it if arrested.

 

His posts were typically in the form of "rap lyrics" and came with disclaimers. The disclaimers said that thee were fiction and he was simply exercising his right to free speech. 

 

The jury was instructed to use a "reasonable man" standard: i.e. would someone reading his posts (e.g. his ex-wife or someone linked to a kindergarten school) reasonably think this was intended as a threat. However, Elonis claims that he never intended to carry out any of these acts, and that without intent there can be no true threat. 

 

So, the point of law is this: can some "speech" be a threat if the person does not intend to make good on it, or is it a threat as long as an objective person, taking full account of the context does judge it to be a threat? 

 

Without knowing much more about the case, I come down on the side of the existing 'reasonable man" standard. Whether something is a threat -- as far a the legal system is concerned -- should not depend on subjective intent nor on subjective perception. Even if you do not mean to carry out your threat, it can still be a threat. On the other hand, just because you perceive something as threatening does not make it a criminal threat. The evaluation should lie within the threat itself, within the context available around it and judged by an objective "reasonable man" standard.

 

For more details, the Scotus Blog covers such cases better than any media.

 

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There is intent to scare, and then there's intent to hurt. If someone intends to scare, that should still be a crime, but it's a different crime than having the intent and means to actually hurt someone. It's harrassment vs. attempted assault/attempted murder/etc.

 

And, in both cases, intent should be judged objectively (meaning: based on direct evidence). I find the "reasonable man standard" to be a roundabout method (and a poor substitute) for looking at the evidence of intent (to either scare or physically hurt) directly.

 

The standard should be: what evidence do we have of the suspect/defendant's intent to either scare or hurt someone? It IS of course true that that's exactly what a reasonable man would do: look at the evidence of the person's intent, so I guess in theory the two methods are the same, but, to me at least, introducing the reasonable man into the equation seems like an attempt to lower the standard of evidence.

 

In general, going with the word "reasonable" rather than "rational" or "objective" gives that impression of a lower standard. For instance, does this reasonable man have an obligation to be diligent in his research and conduct a rigorous examination of the perceived threat, before making his assessment? Or is he just a regular person, going about his business, making the best judgement he can based on whatever evidence he happens to be exposed to?

Edited by Nicky
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A reasonable man is not expected to yell fire in a crowded theater.  I think intent is secondary to whatever consequences follow someone's actions.  If there was no actual harm then a warning to behave more responsibly may suffice, but acting stupid (without intent) is not a defense.

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The Supreme court is taking up a case called "Elonis v. United States". Among other things, Elonis was posting on Facebook about harming his ex-wife and about shooting a kindergarten class. After the FBI visited him about these posts, he posted that he had a bomb strapped to his body and would have detonated it if arrested.

 

His posts were typically in the form of "rap lyrics" and came with disclaimers. The disclaimers said that thee were fiction and he was simply exercising his right to free speech. 

 

The jury was instructed to use a "reasonable man" standard: i.e. would someone reading his posts (e.g. his ex-wife or someone linked to a kindergarten school) reasonably think this was intended as a threat. However, Elonis claims that he never intended to carry out any of these acts, and that without intent there can be no true threat. 

 

So, the point of law is this: can some "speech" be a threat if the person does not intend to make good on it, or is it a threat as long as an objective person, taking full account of the context does judge it to be a threat? 

 

Without knowing much more about the case, I come down on the side of the existing 'reasonable man" standard. Whether something is a threat -- as far a the legal system is concerned -- should not depend on subjective intent nor on subjective perception. Even if you do not mean to carry out your threat, it can still be a threat. On the other hand, just because you perceive something as threatening does not make it a criminal threat. The evaluation should lie within the threat itself, within the context available around it and judged by an objective "reasonable man" standard.

 

For more details, the Scotus Blog covers such cases better than any media.

 

It sounds to me like you've got this exactly right. Whether there is intent or not is unknowable but when the words come out of the person's mouth it enters the objective realm. Words have real, objective meanings/interpretations. The reasonable man standard seems to be a good attempt at deciding what constitutes an objective threat.

 

 

A reasonable man is not expected to yell fire in a crowded theater.  I think intent is secondary to whatever consequences follow someone's actions.  If there was no actual harm then a warning to behave more responsibly may suffice, but acting stupid (without intent) is not a defense.

 

Yelling fire in a crowded theater (unjustifiably) is a property rights issue, not a free speech issue. It shouldn't be illegal because of consequences but rather because the theater owner prohibits it.

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Yelling fire in a crowded theater (unjustifiably) is a property rights issue, not a free speech issue. It shouldn't be illegal because of consequences but rather because the theater owner prohibits it.

If a theater owner walks into his own theater and shouts "fire", his ownership of the space does not absolve him.

I believe a "reasonable man" standard applies here as well. The person shouting "fire" is doing something illegal if he has no reason to suspect there is a fire and if (in the context) reasonable people would take it seriously, rush to the doors, and possibly injure themselves, etc.

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I don't think SN ever said that. And it's not true. I know all kinds of things about other people's intentions. 

 

Well I don't want to misatribute anything to SN but that was my interpretation of this:

 

 

Without knowing much more about the case, I come down on the side of the existing 'reasonable man" standard. Whether something is a threat -- as far a the legal system is concerned -- should not depend on subjective intent nor on subjective perception. Even if you do not mean to carry out your threat, it can still be a threat. On the other hand, just because you perceive something as threatening does not make it a criminal threat. The evaluation should lie within the threat itself, within the context available around it and judged by an objective "reasonable man" standard.

 

 

As far as you (Nicky) knowing the intentions of many people, so what? There are many cases of speech where it's impossible to know the intent. However, the words that come out of the person's mouth are knowable and can be objectively interpreted within the proper context.

 

 

If a theater owner walks into his own theater and shouts "fire", his ownership of the space does not absolve him.

I believe a "reasonable man" standard applies here as well. The person shouting "fire" is doing something illegal if he has no reason to suspect there is a fire and if (in the context) reasonable people would take it seriously, rush to the doors, and possibly injure themselves, etc.

 

Interesting point SN, I didn't consider the owner's right to yell 'fire'. If it's possible to show that yelling 'fire' places the owner's customers in danger, I guess I would consider that to be along the lines of a company knowingly selling a dangerous product to an unknowing customer. Wouldn't that still fall into the property rights category though? The customer bought a ticket on the assumption that they would sit down and enjoy a movie. Instead, the theater owner did not uphold the contract and actually purposely put them in danger. Similarly, it's illegal for a business to poison food that it sells.

 

It just seems like this is distinct from the issue of free speech in a fundamental way. Free speech concerns an individual's ability to speak to others while on/using their own property. The theater example concerns a business transaction and customer expectations/understanding of how they'll be treated.

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Yelling fire in a crowded theater (unjustifiably) is a property rights issue, not a free speech issue. It shouldn't be illegal because of consequences but rather because the theater owner prohibits it.

There may be meaning of words, but the objective meaning would need intentions. A person can abuse language and etymology, even conventions, which relates to general or reasonable interpretations. Abusing that is ignoring what is true about language as well as any evaluations of the concepts behind the words. But what a PERSON means is all about intention. I'm not talking about what the word fire means, but what the person means or implies by saying fire. Yelling "fire" intends for people to run away, not just to say "a fire is happening". Is the intention to cause deliberate disruption? If yes, does that endanger someone else unknowingly? If yes again, then why is it a right of a property owner to say it's okay to do that?

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As far as you (Nicky) knowing the intentions of many people, so what? There are many cases of speech where it's impossible to know the intent.

So, I'll tell you the same thing I would tell anyone who claims something is impossible to know: just because you decided you can't know something, doesn't mean it's impossible to know. If you can't know it, then just stay out of it, and let people who can, act instead.

There's no such thing as "impossible to know". That's an epistemological error.

You can and should know the intent of someone, before putting them in jail for it.

Edited by Nicky
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Intent absolutely can and often is established by the context. Sometimes there's not enough knowledge about the context to establish certainty, but often there is. Defendants often lie about their intent and thus it needs to be extrapolated by other knowledge.

 

Law enforcement is ultimately based on judgement calls based on non-godlike information, which is why we have judges and juries. It's also why innocent people are sometimes convicted and guilty people sometimes go free.

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...

Law enforcement is ultimately based on judgement calls based on non-godlike information, which is why we have judges and juries. It's also why innocent people are sometimes convicted and guilty people sometimes go free.

 

That is the beauty and the curse of our legal system; that twelve reasonable men must overcome a reasonable doubt to deliver justice.

Edited by Devil's Advocate
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  • 2 months later...

IMO I don't think SCOTUS should even be hearing this case. Using the Commerce Clause to justify taking this case which rightfully belongs to the states is another abuse of the Commerce Clause. Furthermore, I believe the continued abuse of the First Amendment to protect ALL forms of speech is a perversion of the intent of the First Amendment. 

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  • 3 months later...

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