January 26, 2012
Federal Prosecution Over "Threats" on Craigslist – US v. Stock
[Post by Venkat Balasubramani]
US v. Stock, Cr. No. 11-182 (W.D. Pa.; Jan. 23, 2012)
I blogged about a case before where a defendant was charged under a federal threat statute of posting a threatening video to YouTube. (“Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a "True Threat.”) A couple of recent cases have raised similar issues.
Stock was charged with posting a notice on Craigslist. Here is what the notice said:
I went home loaded in my truck and spend the past 3 hours looking for this douche with the expressed intent of crushing him in that little piece of shit under cover gray impala hooking up my tow chains and draggging his stupid ass down to creek hills and just drowning him in the falls. But alas I can’t fine [sic] that bastard anywhere . . . I really wish he would die, just like the rest of these stupid fucking asshole cops. So J.K.P. if you read this I hope you burn in hell. I only wish I could have been the one to send you there.
Stock said that the statement was not a "threat" under the statute, so regardless of whether a reasonable person would perceive it as a threat, the indictment should be dismissed as a matter of law.
The court says that, although the statute does not define the term "threat," cases construing similar statutes say that a threat is "a serious statement or communication which expresses an intention to inflict injury at once or in the future" (as distinguished from "idle or careless talk . . ."). Under this definition, the court says that it can’t dismiss the indictment because defendant’s statement would not be considered a threat only if different parts of the post were viewed discretely. While some parts of the post express a mere desire that something bad occur, or reference harm in the past tense, when viewed as a whole, whether the post is a threat is a question for the jury.
The court cites to US v. Elonis, another recently decided district court case where the court declined to dismiss a similar indictment. Elonis was charged with making threats via interstate commerce based on statements he made on his Facebook page. He was formerly employed at an amusement park, and he posted a series of threats directed at the amusement park, local authorities, and his wife. Here’s a flavor of some of the posts:
And if worse comes to worse
I’ve got enough explosives
To take care of the State Police and the Sheriff’s Department.
That’s it, Ive had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius
To initiate the most heinous school shooting ever imagines
And hell hath no fury like a crazy man in a Kindergarden class
The only question is . . . which one
The defendant in Elonis made a few arguments similar to the ones made by Stock: the statements were hyperbole, venting, and that the statements were "crude, spontaneous and emotional language expressing frustration." The court rejected these arguments, noting that as long as the defendant "knowingly” made the statements, whether they were threats depends on whether an objective recipient would perceive the statements as threats. The court also noted that although the threats were posted to Facebook, the subjects of the alleged threats (the amusement park co-workers and his wife) were Facebook friends with the defendant and saw the threats.
There were a couple of key differences between Elonis and Stock. For starters, the statements in Elonis were scarier (they talked about blowing up a school). The court also notes that defendant continued to post threatening statements after Elonis’s wife obtained a protective order. Additionally, the statements Elonis made were likely to be viewed by the subjects of the threats, which included Elonis’s former co-workers and his wife (or his wife's friends). The statements in Stock on the other hand were contained in a post to Craigslist. The post did not identify the target of the threat by name, and we don’t have any idea of how that person would even come across it. For all we know, no one even viewed the threat at all. The statements were similar to the YouTube video the defendant posted in Jeffries. (For what it’s worth, Jeffries was appealed and the appeal is currently pending.)
Some of this gets to the issue of defendant’s intent. There’s a mix of authority as to whether the defendant must subjectively intend the threat to be a threat, with many jurisdictions saying that subjective intent is not required. (The Ninth Circuit says yes, the defendant has to subjectively intend to make a threat, not just intend to transmit the communication in question.) However, all of the cases acknowledge that the defendant must knowingly transmit the statement in question. And that’s where Jeffries (the YouTube case) and this case feel like they are on shaky ground. In both cases, the defendants made statements in cyberspace that were not directed at the subjects of the ostensible threats. In Jeffries, I’m skeptical that the defendant knew that the subject was likely to come across the threat, but in this case I’m even more skeptical. The statement was posted to Craigslist!
It's also worth pointing out that last month a district judge in Virginia dismissed an indictment based on thousands of allegedly harrasing tweets and various blog posts. (Here's a post from Ars Technica on that case: "Judge: indictment for Twitter harassment is unconstitutional.") Although the charges in that case were different in that the government proceeded under a different statute and argued that the defendant intended to cause "emotional distress" to the victim, the court relied on the fact that the communications were not made directly to the victim. (Here's a pdf of the court's order in US v. Cassidy. The analysis between this case and Stock and Elonis differs because "true threats" are considered unprotected speech, but it's interesting that the court relied on the fact that the communications were not made directly to the victim.)
I understand why the government may want to track and investigate threatening statements made online, but I'm surprised these statements ended up being the subjects of federal criminal prosecutions.
[I made a few changes to the post to clarify the timing between the protective order and the threats in Elonis. There were multiple statements that were allegedly threatening and the defendant continued to post after his wife obtained a protective order. At some point she presumably unfriended him on Facebook. While she may not have been directly exposed to threats the defendant made after she obtained the protective order, people in their mutual social circle would have seen them.]
Posted by Venkat at January 26, 2012 04:04 PM | Content Regulation