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Friday, October 20, 2023

Free speech line drawing (Updated)

UC-Davis history professor Jemma DeCristo faces some internal and external troubles over a tweet reading "[One] group of ppl we have easy access to in the US is all these zionist journalists who spread propaganda & misinformation,” she wrote. “They have houses w addresses, kids in school. They can fear their bosses, but they should fear us more," followed by emjois of a knife, an ax, and blood droplets. DeCristo has been disappeared from Twitter and from Davis' web site. Many people, including free speech maximalists, believe this crosses the First Amendment line, uniquely among the various rallies, tweets, and statements (including from DeCristo) celebrating the October 7 massacre, the fire at the Israeli embassy in Jordan, the firebombing of the Berlin synagogue, etc.

I do not see why this tweet--as despicable as it is--crosses a First Amendment line that similarly reprehensible speech has not. It does not reach incitement--it does not urge specific action at any time and place, certainly not imminently, and thus is unlikely to lead to such imminent lawless action. It does not reach true threat--it does not mention or address any particular person or group in any time or place, making it, at best, against all Jews (or at least all Jewish journalists). The emojis do not make the threat more specific in time or place. And the norms (such as they) surrounding emojis on social media arguably push this away from a threat and into rhetorical hyperbole.

Again, I am not defending this person or the content of her speech--both suck. But I do not understand why free-speech maximalists  have gotten off the train here.

Update: An email interlocutor points me to US v. Hussaini (S.D. Fla. 2022), refusing to dismiss a federal threats indictment against a person who posted You Tube videos threatening to kill Christians by stabbing out their eyes with a knife and to murder Black people by burning their bodies in a fire. The court rejected defendant's argument that his statements were not directed at a sufficiently discrete group of people, citing Virginia v. Black and US v. Cox from the Sixth Circuit. Reliance on Cox is questionable--the statement there was made by phone to a bank employee and referenced harm to "you all" and "people there" in the bank, including the listener. Reliance on Black is iffy because the Court rejected the view that any cross burning is done with intent to intimidate, which would protect most cross burnings occurring in a field and away from any particular person or group. Nevertheless, Hussaini stands as at least persuasive authority that online speech threatening an enormous group can constitute a sanctionable true threat, even if the result lacks real support and explodes this heretofore narrow category of unprotected speech. If the threats to all Christians and all Black people can be punished as threats, so can DeCristo's tweets.

Posted by Howard Wasserman on October 20, 2023 at 09:20 AM in First Amendment, Howard Wasserman | Permalink


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