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Thursday, April 27, 2017

#I 🔫U: Considering the Context of Online Threats

Tomorrow, I'm fortunate to be travelling to the Yale Freedom of Expression Scholars Conference. I love the format of this conference, because you have to present someone else's paper and someone else has to present yours. This format really helps you understand where your draft is lacking and get creative ideas for filling the holes. My paper, written with UF Law/Journalism JD/MA Linda Riedemann Norbut, is called #I 🔫U: Considering the Context of Online Threats and  advocates for a context defense to prevent overcriminalization of threats. Here's the abstract, in case you're interested. Email if you'd like to receive a draft. I've already found that having an emoji in one's article title is a hassle, in case you were contemplating using one. The hassle factor may be even worse if one chooses to use a gun emoji.

The U.S. Supreme Court has failed to address a number of fundamental questions regarding its true threats doctrine. Unanswered, for example, are whether lower courts should view threats from the vantage of the speaker, a reasonable recipient, a reasonable reader, or all of the above; what mens rea the First Amendment require before an alleged threat can be subject to criminal punishment; whether a threat must be specific to justify criminal punishment; and whether threatened violence must be imminent. The Court’s failure to provide guidance for the legal decision-makers who investigate, prosecute, and adjudicate threats is especially acute in the social media era: as billions of people have begun using social media for communications, alleged threats have grown massively. Meanwhile, the Court’s failure to clarify true threats doctrine is having real consequences for real people. This article illustrates by close examination of the case of a Texas teenager who made hyperbolic comments about shooting up a school and found out the hard way that legal decision-makers do not always apprehend how Facebook conversations differ from their offline counterparts. Using the Justin Carter case as an analytical springboard, this article proposes richer inclusion of contextual evidence in threats case to ensure that innocent hyperbole is not confused with culpable threats. The article compares social media speech with its offline counterpart, examining facets of social media that can make hateful and even terroristic speech potentially more common and more damaging to victims, as well as facets that can magnify the potential for a speaker’s innocent words to be misunderstood. This analysis suggest that it is impossible to correctly interpret social media speech without reference to contextual factors such as emojis or hashtags as well as the distinct discourse conventions within social media platforms; only by considering these and other contextual clues can legal decision-makers avoid imposing liability on innocent speakers for protected speech. This article therefore advocates creation of a procedural mechanism for raising a “context” defense to a threats prosecution prior to trial. Comparable privileges protect defamation defendants from having opinion misconstrued as defamatory and allow them to have their liability resolved at an early stage of litigation, often before they must undergo the anxiety and expense of trial.  This article therefore proposes to give criminal defendants a new defense in threats cases: this defense will permit defendants to produce contextual evidence relevant to the interpretation of alleged threats for consideration by a judge at a pre-trial hearing. In cases where contextual issues cannot be resolved pre-trial, the context defense entitles a defendant to produce evidence of context at trial and have the jury be instructed regarding the critical role of context in separating threats from protected speech. Although the context defense will be especially helpful in social media cases, its use in all threats cases will provide an important safeguard against erroneous convictions of speech protected by the First Amendment.

Posted by Lyrissa Lidsky on April 27, 2017 at 03:45 PM | Permalink


Should the "true threats" scrutiny level be lowered for people who've served time in prison for felons? For instance, the second amendment(and the right to vote) basically disappears for people who've been released from prison.
Should the presumption-of-innocence in a "true threats" suit also disappear for ex-felons? If an ex-felon is too dangerous to own a gun or vote, should everything unusual they say be interpreted as a true threat, until proven otherwise?

Posted by: FalseThreatsTrueNews | Apr 27, 2017 7:52:48 PM

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