Which Was Dumber–Trash-Talking Tweeting, Or The Decision To Prosecute For It?
Robert Metzinger made the following four tweets during the 2013 World Series in St. Louis:
- Going to be tailgating with a #PressureCooker during games 3-4-5 in #STL during #WorldSeries. #STLStrong #GoCards #postseason from Springfield, MO.
- Putting my loft up for ridiculous “Boston-only” rate on @airbnb for the #WorldSeries. Pressure cooker sold separately.
- The #WorldSeries will be another finish line not crossed by #Boston.
- Listening to the Offspring’s “Bad Habit”* and the lyrics just ring true of what will go down very soon. [* the song “contained lyrics about violence, with repeated mentions of ‘blowin away’”]
The state prosecuted him under a Missouri statute for making a terrorist threat. The trial court granted defendant’s motion to dismiss the indictment because the tweets were not true or implied threats. As the trial court noted:
These are untimely ramblings, that upon his inner circle advising him of the ridiculousness of them he sought to pull them off prior to any intervention from any outside source. Therefore, I don’t believe they’re true threats or implied threats.
On appeal, the Missouri appeals court agreed. The statute merely provides that a threat includes “an express or implied threat,” but beyond this, does not define what constitutes a threat. The court looks to Supreme Court case law (Virginia v. Black) and finds it not particularly instructive. The court does find some Missouri appeals court cases helpful. In one case, conditional language that “[the speaker] may [be] get[ting] dynamite” and asking if someone wanted to “help him blow up the school” was held not to be a true threat. In another, a defendant was found guilty when he told a police officer on campus that “he had explosives in his truck and . . . was assuming command and taking over.”
In Metzinger’s case, a reasonable listener would not construe the tweets as threats:
Here, as in C.G.M., the language of the tweets at issue demonstrated on their face that they were not serious expressions of an intent to cause injury to another. The parties do not dispute that Defendant published the statements on Twitter during the 2013 World Series. In his tweet of October 21, 2013, Defendant referred to “tailgating . . . during games 3-4-5” and included the following: “#WorldSeries. #STLStrong #GoCards #postseason . . . .” Defendant’s tweets of October 22, 2013 also contained “#WorldSeries.” Defendant’s tweets facially reveal that they were made in the context of sports rivalry, an area often subject to impassioned language and hyperbole. While Defendant’s references to pressure cookers and allusions to the Boston Marathon bombing were tasteless and offensive, the context of his tweets was such that a reasonable recipient would not interpret them as serious expressions of an intent to commit violence.. . .
Defendant’s tweets are distinguishable from the threats in Tanis and Browder because the State established without dispute at the hearing that they were made in the context of sports rivalry and in the spirit of “trash talking.” Nothing in Defendant’s tweets credibly suggested, either directly or indirectly, that Defendant was threatening violent acts that were likely to occur.
The court dismisses with prejudice.
The federal statute requires that threats be objectively perceived as a threat with some courts also requiring a subject intent requirement. How the objective test applies is also up in the air. In this case, for example, would you look at whether a reasonable baseball fan would perceive this as a threat versus trash talking? A reasonable Bostonian? Reasonable security officer? A likely reader? The court alludes to the “context”, and this also comes up in online defamation cases where courts often take the medium into account in finding online speech to be hyperbole. (US v. Elonis, argued in December in front of the Supreme Court, delves into a bunch of these issues.)
As in the Facebook cases, there’s also the question of whether the threat was communicated to anyone. In the Facebook cases involving individual victims, courts reason that someone in the intended recipient’s circle will end up communicating the threat, so it doesn’t matter that the defendant just communicated it generally and not directly to the victim. It’s not as easy to make that assumption here given the generalized nature of the statements. Also, Twitter seems different from Facebook in this respect–it’s tougher to assume that someone’s friends, associates or intended victim would see the statement. On the other hand, the use of hashtags increases the possibility that a random person on Twitter may come across the tweets.
Prosecutions for social media tweets seem to occur with increasing frequency, both in the US and abroad. (The twitter joke trial in the UK where the speaker was ultimately vindicated stands out in my mind: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!“) Prosecutions for threats also occur often in the school context, where courts are more inclined to find a threat. It’s nice to see the court take a pro-speech approach here and toss the indictment. It’s also worth noting that although the court does not get into it, the offensiveness of the tweets is not a First Amendment-appropriate reason to penalize Metzinger for them. Foolish and mis-guided tweets no doubt, but tough to imagine the prosecutors don’t have better things to focus on.
Perhaps there will be a further appeal, but sports-tweeters who send edgy tweets can take solace in the fact that at least one court has seen fit to take into account the charged nature of sports rivalries when assessing whether these tweets constitute prosecutable threats.
Eric’s Comment: It was not smart to make these tweets, but I can’t believe a prosecutor thought this was a case worth bringing–and appealing! It’s a reminder that our criminal justice system relies heavily on prosecutorial discretion; so every time we see a case where prosecutors seemingly overreached, it’s a reminder that any of us could be next. This is especially true in social media, where a person might be intending to speak only to a small niche audience that will clearly understand the posts based on their community’s norms and nomenclature in ways that outsiders would misinterpret. It would be great if the Supreme Court in Elonis issues an opinion that lets people to make ill-advised social media mistakes without fear of prosecution, but I’m not optimistic we’ll get anything so clean.
Case Citation: State v. Metzinger, No. ED101165 (Mo. Ct. App. Feb 24 2015)