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1. Running head: TRUE THREATS IN THE DIGITAL AGE True Threats in the Digital Age Conor Brown and Casey Schoenholtz High Point University December 4, 2014 2. TRUE THREATS…
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  • 1. Running head: TRUE THREATS IN THE DIGITAL AGE True Threats in the Digital Age Conor Brown and Casey Schoenholtz High Point University December 4, 2014
  • 2. TRUE THREATS IN THE DIGITAL AGE 2 True Threats in the Digital Age Introduction The Internet is a powerful tool that unites the world on one platform and has encouraged freedom of speech in an unprecedented way. This medium of expression has increased drastically over the past ten years with millions of users communicating daily through social media. While the Internet has become the highway of communication in the modern world, social media is the heart where a majority of content is produced. It is now possible to disseminate information to massive groups of people in an efficient and inexpensive way that can be posted for an indefinite period of time. While this progress is outstanding, the Internet has brought rise to new challenges, especially when it comes to interstate communication. Interstate communication is the act of any two parties communicating a message across state lines, and while in the past it has only dealt with person-to-person communication such as a letter or telephone call, the Internet has opened a door to non-direct means of communicating. There has also been a rise in threatening speech with the computer screen serving as a mask of confidence. These two factors have sparked a new debate in defining what a true threat means and what kind of intent is necessary to outline what is not protected under the first amendment. Is there any legal remedy that can protect a citizen from a true threat, yet still maintain first amendment privileges? Speech needs to be encouraged on the Internet to help create open debates and allow users to not only promote innovation, but also participate in self- government and establish an outlet where stable change can be discussed. Citizens
  • 3. TRUE THREATS IN THE DIGITAL AGE 3 need to feel that the Internet is a safe harbor in which they can freely express their opinions and ideas, while the well being of others can also be ensured. This is easier said than done because as stated in Chaplinsky v. New Hampshire, “an individual’s right to free speech is expansive but not absolute.” (Chaplinsky v. New Hampshire, 1942) The United States Supreme Court has even addressed this idea by saying that some speech is so low in value and can inflict great potential harm that it does not deserve First Amendment protection (Celis, 2014). Specifically, one type of this speech is true threats. The issue of true threats on the Internet is important to address because there needs to be a balance between restricted and unrestricted speech. People need and want to feel protected from true threats, especially those made through the Internet. Conversely, it is crucial this standard does not squelch too much speech and allows the people a marketplace of ideas. The most recent precedent setting case the Supreme Court heard on threatening speech is Virginia v. Black in 2003. In this case, the Court attempted to define what a “true threat” was, clarifying the term that had been mentioned in previous cases. Under these new terms, a true threat is a statement a speaker is trying to express with intent to commit an unlawful act to a specific individual or group (United States v. Bagdasarian, 2011). In this decision, the Court laid great weight on the intent requirement, outlining that only intentional threats can be found criminally punishable under the first amendment. However, this case only further muddied the waters on how exactly “intent” should be applied. While some courts interpreted the ruling as requiring a subjective intent clause, other courts
  • 4. TRUE THREATS IN THE DIGITAL AGE 4 found this not to be necessary and continued using only an objective intent standard. Since the decision of Black, there have been varying interpretations of the law, causing confusion across the court systems. Now, however, the Supreme Court is set to hear another important case to clarify true threats, specifically involving online threats. Anthony Elonis separated from his wife in 2010 and sometime later began posting rap lyrics on his Facebook page about killing his wife and others, including an FBI agent who was investigating his actions. One such posting stated, “there’s one way to love you but a thousand ways to kill you” (Elonis v. United States, 2013). While he claims the posts were simply therapeutic and artistic, the subjects of his rap lyrics felt threatened. Elonis claims he never intended to harm anyone and just wanted to express himself during a rough time in his life. In Elonis v. United States the Court will further define “intent” and look at whether the online distance social media puts between the speaker and listener affects the outcome of what constitutes a true threat. The purpose of this paper will be to examine how federal and state courts have addressed the issue of true threats under the first amendment in the wake of the Supreme Court holding of Virginia v. Black. This paper will also evaluate whether federal or state courts are applying holdings in a consistent or inconsistent manner due to the varying interpretations. With the advancement of technology, the Supreme Court has taken this case to adapt the definition of a true threat and looks to establish a guiding principle for online speech. The first part of this paper will assess varying opinions of legal scholars relating to this topic, while the next section
  • 5. TRUE THREATS IN THE DIGITAL AGE 5 of the paper will look at cases that have applied the Black decision at both the federal and state level. Finally the paper will conclude with observations and recommendations for how true threat cases should be handled in the future, especially threatening speech online. Literature Review The issue of true threats developed in Watts v. United States in 1969 with the use of the objective test, however the court did not address this issue again until Virginia v. Black in 2003 (Watts v. United States, 1969). The outcome of this case only further muddied the waters and created a discrepancy between objective and subjective intent. While some scholars are in favor of the outcome of the case, many scholars are calling for clarity on what the intent standard for true threats should be. Adrienne Scheffey (2014) specifically addresses the controversy over intent through Internet as a medium. With the growth of social media, many individuals are using the Internet as a buffer between them and the real world. It is an outlet for people to share thoughts, ideas, and speech, and while many who receive threats on the Internet may disregard these as meaningless, the American legal system often does not. “The differing response in individuals from the law represents a pronounced tension between our current free speech jurisprudence and the statutes governing true threats” (Scheffey, 2014, p. 5) In other words, the courts have been unable to settle on what intent is and how it should be applied. With the advances in technology and the speed at which news is spread, the law needs to adjust as well.
  • 6. TRUE THREATS IN THE DIGITAL AGE 6 There is a need for clarity to restrict different interpretations across the circuits for true threats (Scheffey, 2014, p. 66) Paul Crane (2006) further emphasizes that the courts need to clarify the ambiguity of the language Virginia v. Black has created. Each court is using the same source to justify approaches, but this is causing varying consequences. As evidenced by not only the different interpretations across the circuits, but within each circuit, there is a need for a clear and consistent approach to the intent standard (Crane, 2006, p. 1269). Crane concludes that the objective intent standard chills speech and will continue to be the dominating test unless the Court supports the subjective standard. He argues that a subjective standard will not let a defendant automatically go free, but will give the speaker an opportunity to explain, and is therefore the best option for the courts to use (Crane, 2006, p. 1275). In Pedro Celis’ review entitled, “When is a YouTube Video a ‘True Threat’” he explores the idea of what is needed to classify a video of having a true threat and when a user can be held for criminal liability (Celis, 2014). He cites the case of United States vs. Jefferies as having multiple flaws in the way true threats were classified. In this case, the circuit court was split on the mens rea for the case and this apparently has occurred in many instances. The problem is that a YouTube video is often not directed at one specific individual or group. While it is still a form of interstate communication it is not as specific as a telephone call, which is between two individuals, and therefore the definition of a true threat can be interpreted differently. A true threat is most often directed at the person who is being threatened and in this case the YouTube video was never sent directly to the person
  • 7. TRUE THREATS IN THE DIGITAL AGE 7 being threatened. Celis claims that the Sixth Circuit Court requires objective intent as well as a true threat (2014). They created a test to determine whether a threat reaches the level of a true threat. For this to happen, the court has stated that a true threat must incorporate subjective intent to threaten. The Ninth Circuit Court requires both subjective and objective intent to threaten but does not administer a true threat test (2014). This is an example of how unclear the definition of a true threat is to every court and how limited consistency there is amongst the courts. There is an overall idea that there must be objective expression to cause harm and subjective intent to threaten but how this is reached varies from court to court. Michael Zimmerman comes to somewhat of the same conclusion with true threats and the nature of subjective intent. He states that online harassment statutes can, for the most part, be broken down into four distinct categories (Zimmerman, 2014). The first category takes an objective standard from the perspective of the speaker where as the second category takes an objective standard from the listener’s perspective. The third category demands some sort of concrete or specific example of intent on behalf of the speaker, and the fourth uses some sort of combination of the previously stated categories. While all of these are somewhat close together there is still just too much discretion that a judge or jury can have when ruling on the case. What standard is there that everyone can use? Zimmerman believes that there needs to be clarification of what a true threat is but, “neither the objective nor the subjective standard of the true threat doctrine alone are quite comprehensive enough to deal with the subtle nuances of balancing speaker intention with the aggregate impact on the listener” (2014). He believes that by
  • 8. TRUE THREATS IN THE DIGITAL AGE 8 taking the Elonis case the Supreme Court is looking to clarify what a true threat is, and that the clarification has to be able to deal with the uniqueness that separates one case from another. Others, such as Jake Romney, argue that there is no need for a subjective intent analysis when creating a true threat statute. He uses the case of United States v. Bagdasarian. Romney suggests that in this case the Ninth Circuit Court made a mistake when they stated that the, “First Amendment requires a subjective intent analysis to be engrafted on all true threat statutes” (Romney, 2012). Here he argues that the First Amendment only requires an objective test when dealing with a true threat and subjective intent should only be used in instances when it is truly needed. If there was no subjective intent clause it would be much easier for the government to punish individuals that they find have posted true threats online. With an objective and subjective component, the government bears the burden to prove that others reading the statement would interpret the statement as intent to injure or kill as well as proving that the speaker intended the statement to be interpreted as a threat. By having to prove both of these facts it makes it much more difficult for the government to punish citizens. Without a subjective intent clause the government only has to prove that others view the statement as intent to injure or kill. Yet, Romney argues that requiring a subjective intent clause is not always necessary because he believes that punishing true threats is for the benefits of others and it should not protect the citizen giving the statement. Objective intent is the process by which a reasonable person (other than the speaker) believes the statement was intended to injure or kill (Romney, 2012). Romney believes that punishing true
  • 9. TRUE THREATS IN THE DIGITAL AGE 9 threats is done in order to protect others and therefore you only need the opinion of others through objective intent to punish the speaker. It should be noted that this idea does take away a large amount of freedoms from the speaker themselves. One additional scholarly review to examine is Eric Segall’s “The Internet as a Game Changer: Reevaluating the True Threats Doctrine.” While Segall argues that there is great disparity in how courts are distinguishing between true threats and constitutionally protected speech, only in America is speech protected this much. The Supreme Court has traditionally overprotected speech to avoid issues with censorship, making the United States an outlier among Western democracies. For this reason, “it would be a serious mistake to extend this overprotection of speech to threats of violence on the Internet” (Segall, 2011, p. 13). Segall seeks to find a balance in the values of free speech and the potential harms that can be caused by speech. In doing so, it is crucial to hold true threats to a definition that is narrow enough not to squelch too much speech. A final remark Segall gives in offering advice to the courts in determining the line between protected speech and true threats is to be sensitive to the persuasiveness of the internet. After all, reaching a large amount of people has never been easier or more permanent (Segall, 2011). These scholars all agree that there is inconsistency in the way the law regarding true threats is interpreted. Whether they believe that subjective intent is required or not, they seek to define a more universal understanding for true threats. Research Questions and Methods
  • 10. TRUE THREATS IN THE DIGITAL AGE 10 This paper proposes two noteworthy questions. The first question to examine is, does the medium in which a threat is made, such as a social networking site like Facebook, constitute a true threat? The second question this paper will explore is should subjective intent be applied when dealing with threats via the Internet? This paper works to answer these questions by examining state and federal level cases that cite Virginia v. Black as a precedent setting case and have been decided from the year 2008 to the current year 2014. While Virginia v. Black was decided in 2003, Facebook did not become the most popular form of social media until 2008, which in turn accelerated Internet traffic. Legal resource LexisNexis will be used to gather information. Case Analysis Since 2008, the courts at the federal and state levels have heard cases dealing with true threats and have cited Virginia v. Black. The problem, however, is that each court is interpreting Black differently, and as a result, people are experiencing different consequences. The majority has interpreted Black from one approach and rejects the notion that it requires subjective intent. Nonetheless, some have implemented the subjective intent test because the words were inferred differently. Federal Cases Looking specifically at federal level cases that have reached the Court of Appeals for each circuit since 2008, there have been 17 cases. Of those cases, nine of the 13 circuits have needed to set their own precedent and all except for three have erred on the side of using the objective test. Those using the objective test follow the
  • 11. TRUE THREATS IN THE DIGITAL AGE 11 principle that a threat is anything that evokes fear in a reasonable person or would be understood as a threat in context. Favoring the use of a subjective test would require evidence that there was specific intent to carry out a threat or cause fear in another by the speaker. Virginia v. Black was not clear in what it specifically implies and has therefore led to further tensions. This section will analyze several cases from different circuits to demonstrate the discrepancy of how the law is applied. One demonstration of the decision advocating the objective test is United States v. White. In the 2012 case, White was charged with soliciting a large amount of personal information of high profile individuals and sending threatening emails that alluded to a murder (United States v. White, 2012). White argued that Virginia v. Black calls for the use of the subjective test and that he had no intention of these messages causing fear. The court held that Black does not call for intent to be shown and solely called for the reasonable recipient test to be applied. The United States Court of Appeals for the Fourth Circuit concluded that “means to communicate” in Black refers to the act of communicating and not intent threaten. Under this ruling, the appellate court affirmed White’s convictions of sending a true threat (United States v. White, 2012). Another case that upholds Black that does not require a subjective intent analysis for all true threats is United States v. Jeffries. This case that was decided in 2012 involves a man posting a video to YouTube. After a prolonged dispute over visitation rights and custody of his daughter, Jeffries wrote a song about his love for his daughter, but the song turns violent when he rants about the legal system and threatens the judge to make the right choice in his lyrics (United States v. Jeffries,
  • 12. TRUE THREATS IN THE DIGITAL AGE 12 2012). Not only was the video of him singing the song posted to YouTube, but he also sent it directly to numerous Facebook users including a state representative and a news outlet. The court supported the decision that he could be convicted only if his threat was objectively real, meaning if a reasonable person would have perceived Jeffries’ words and conduct as a true threat, and people did. The court further emphasized that while he did not directly send the video to the judge he threatened, it is not required that a threat be communicated to its target. “It prohibits a communication containing any threat regardless of whether the threat reaches the target” (United States v. Jeffries, 2012). Jeffries asks the court to consider his subjective purpose, but the Sixth Circuit affirms that Black says nothing about imposing a subjective standard on threats (United States v. Jeffries, 2012). Additionally, the Eleventh Circuit has declined to adopt the subjective interpretation of Black in United States v. Martinez (2013). This case involves a wife reporting her husband was mentally ill and was planning on opening fire at a nearby school. Upon receiving this news, local forces took precautions and locked down the schools, but soon after, investigators discovered the communications were the wife and the husband had no involvement. Ellisa Martinez was convicted of knowingly transmitting a threat under the Eleventh Circuit Court of Appeals. While Martinez attempted to argue she did not have intent in the communications, the court held the same reading of Black as the Fourth and Sixth Circuits stating it does not require proof of the defendant specifically intending the statement to be threatening (United States v. Marti
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