When Can Defendants Defeat A Criminal Threat Prosecution By Claiming They Were Joking? Not Often
The “Twitter joke trial,” where a UK man was prosecuted for joking about blowing up an airport, made waves and resulted in widespread criticism, but recent cases in the US show that prosecutions for jokey threats over social media are alive and well. And the First Amendment is not a trump card.
US v. Bradbury: Bradbury posted that he was part of an anarchist organization who organized to kill cops in the Lafayette area. He wrote that two residents who recently killed police officers acted on the anarchists’ orders and that the anarchists were targeting specific police officers. Allegedly they also gathered enough thermite and explosives to cause “extreme damage” to Tippecanoe buildings. He also says:
KILL COPS, STICK PIGS, AND WATCH OUT FOR 765 ANARCHISTS
After some of his Facebook friends reacted with discomfort, he added that the post was “complete satire” and he was engaging in “an exercise of whether free speech still exists in America.” [Eric’s comment: sadly, he learned first-hand that the answer is no.] I guess there was no group, no weapons, no bombs, and no plot.
Bradbury was prosecuted for a crime making it an offense to convey a threat about damaging property or person by fire or explosives, and also to maliciously convey false information about an attempt or alleged attempt to cause damage. [This sounds like a statute that may prohibit you from yelling fire in a crowded theater!]
Bradbury raises a First Amendment defense. The court says the key question is whether Bradbury’s post satisfies the true threat standard, which the Seventh Circuit held only requires that a reasonable listener or viewer perceive the statement as a threat. Applying this standard, the court declines to dismiss. In passing, the court says:
Deciding when something is a “true threat” and when it is mere hyperbole is dicey business. A lot of people spout off online via Twitter, Facebook and other social media. That, of course, is their First Amendment right. But determining when the comments cross the line from permissible First Amendment expression to true threats is difficult. The line is hazy, and the question becomes does speech have to be threatening to a reasonable person who may hear or read the comment or is it the intent of the person making the statement that matters? In other words, is the standard an objective or subjective one? The Supreme Court is grappling with those very questions right now in the case of Elonis v. United States, No. 13-983.
In re L.F.: This case involved a juvenile who jokingly tweeted about shooting up her school. Her tweets were peppered with the usual indicia of being jokey:
“If I get a gun it’s fact I’m spraying [five laughing emojis] everybody better duck or get wet”;
[three laughing emojis] not scared to go to jail for shooting up FHS warning everybody duck”;
“Nigga we ain’t fighting I’m bringing a gun [six laughing emojis]”;
“Mfs don’t really kno me [two laughing emojis] I have touched a gun pointed one don’t […] Bitch I kno how to aim”;
[laughing emojis] I’m frfr black mask yellow tape homicide niggas better he cool”;
“I’m finnah come to FHS like black opps stabbing niggas! Who really with it?”;
“I feel sorry for whoever got c wing 1st period [four laughing emojis]”; “@[username] idk when shit go down prolly the next day”;
“I hope ms Sheila run c wing that day”; d wing”;
“And wtf lol tf you getting popped first fr try me [laughing emoji]”;
“It’s funny cause nobody fighting no more sooooo!! I’m just shootin niggas for fun”; “Mfs wanna test me now [three clapping hands emojis] you crazy I’m crazy too let’s die shooting”;
“I’m leaving school early and going to get my cousin gun now [three laughing emojis and two clapping hands emojis]”;
“Y’all gonna make me go to jail before I step foot on campus [laughing emoji]”;
“I really wanna a challenge shooting at running kids not fun [laughing emoji]”;
“Ok I’m done and if I get called in by the FBI or something bout shooting up a school you Mfs really gonna get shot”; and
“Kill or be killed!!”
Despite the profusion of emojis, a parent and the principal were both worried and took measures. The parent reported it to the police who paid L.F. a visit (and “took pictures” of the tweets). The principal sent out a mass text and instructed one of the teachers mentioned by L.F. to remain in the office. L.F. was charged and found after a contested hearing to have violated the criminal threat statute.
The California statute has been interpreted to require specific intent to make a threat that is unequivocal on its face and that results in sustained and reasonable fear. L.F. argued that she did not intend to convey the threats to anyone at school, but the court rejects this based on the fact that she had 500 or so followers and a public twitter account (and some of the people who responded to her tweets were fellow students). She also argued that the context of the tweets, the fact that her own followers responded to the joke demonstrate that it was not a real threat. The court disagrees:
Minor contends her statements were similarly ambiguous because many of them were accented by symbols of laughing faces and some were accompanied by the terms such as “jk” or “Lmao,” which, Minor argues, show her statements were meant as a joke. In the circumstances of this case, we cannot fault the juvenile court’s findings. Minor’s threatening statements were made over a period of hours, they included threats to shoot people in C-wing or D-wing, including one named staff member, and Minor stated she was going to get a gun. Moreover, Minor provided specific details about the impending shooting, going so far as clarifying that she would target D-wing instead of C-wing; she also stated she did not care about going to jail and threatened to shoot those who called the FBI. On these facts, it was reasonable for the juvenile court to conclude Minor intended her statements to be taken as a threat.
L.F. had some other qualms with the juvenile court’s ruling, including that it declined to treat the offense as a misdemeanor. In course of this decision, the juvenile court alludes to, among other things, L.F.’s track record, mental health, lack of remorse, and the overall climate involving mass shootings. The court noted that school shootings are no longer a joking matter:
“it’s kind of like saying something on an airplane to a TSA agent..[y]ou may be joking, but people don’t take it as a joke anymore.”
The first question that comes to mind is the effect of Elonis on these types of rulings. The first ruling was pre-Elonis, and the Court’s decision in Elonis casts doubt on the use of a purely objective test for this statute (which the court in Bradbury’s case employed). Bradbury filed a motion to revisit the court’s ruling in light of Elonis (this has not been fully briefed). The second case purported to use a specific intent standard, and found sufficient evidence of specific intent. Nothing in Elonis is contrary to the court’s approach in the L.F. case.
Both cases raise tough questions about what the line is between social media jokes and threats. Elonis involved threats directed at a specific person, in contrast to these cases where the threats are aimed at groups of people. However, both of these cases involved hot-button topics (violence involving police officers and school shootings). In both cases, one or two people took the statements as threats, but there’s no indication as to whether these people were outliers in their reaction. As Eric notes below, they demonstrate the difficulty measuring when something truly should be taken as a threat. [A quick Lexis search pulls up 65 results for cases involving true threats and jokes, with no clear standards.]
U.S. v. Bradbury, 2015 WL 2446941 (N.D. Ind. May 22, 2015)
In re L.F., 2015 WL 3500616 (Ca. Ct. App. June 3, 2015)
Eric’s Comments: I failed to see the humor in any of the postings at issue in these cases, but that may reflect the underlying problem. Humor tends to be context- and community-specific. It’s possible for something that makes no sense to a community outsider to be uproariously funny within the community. Until we figure out how to accommodate the possibility that a post may be both funny to insiders and disconcerting to outsiders, more poorly informed people will be going to jail.