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Does Freedom of Speech Have Limits?

Freedom of Speech – Examining the Implications of “Terroristic Threats”

By now, you’ve probably heard about Justin Carter, but in case you haven’t, here’s a recap: Carter is a 19-year-old Texan who was arrested and jailed over a sarcastic Facebook comment. While playing a role-playing game, League of Legends, another player told him he was “messed up in the head.” Carter retorted, “I think Ima shoot up a kindergarten / And watch the blood of the innocent rain down / And eat the beating heart of one of them.” He followed up the comment with “jk” and “LOL” to let everyone know he wasn’t serious. But a woman in Canada saw the comments, became concerned, and reported it to authorities. Carter was consequently arrested in February, charged with making “terroristic threats,” and his bail was set at $500,000. He was not released until mid-July when an anonymous donor posted bail.

While Carter’s remarks were unquestionably in poor taste, especially in light of the recent shooting at Sandy Hook Elementary School, were they actually criminal? Many people think not, and public outrage erupted after his bail was set. An online petition Release My Son Justin Carter even reached more than 75,000 signatures before the bail was posted. But technically, there are laws regarding “terroristic threats.” The Texas Penal Code has a long entry dealing with terroristic threats, but it essentially classifies the crime as a threat to commit violence with the intention of arousing fear, interrupting public activity, or calling out public emergency response teams.

On the one hand, it’s a reasonable statute, especially when you think of the violence that is so rampant in our society. If someone is making a legitimate threat to commit an act of violence, it seems right that we should do everything possible to stop it. But on the other hand, how do we reconcile this prohibition of “terroristic threats” with the Constitutional right to free speech? It can be difficult to weed out tasteless jokes from legitimate threats. What are we going to do – jail everyone who makes an inappropriate comment online? Actually, Carter is not the first person to be legally punished for an online joke. You may remember the case of Cameron D’Ambrosio, an 18-year-old aspiring rapper who posted some of his lyrics on Facebook. They read, “F— a boston bombinb [sic] wait til u see the sh– I do, I’ma be famous for rapping, and beat every murder charge that comes across me.” Though Cameron was eventually acquitted, he was subject to a long investigation.

John Carter’s plight comes at an interesting time, especially after Edward Snowden’s revelations of government surveillance. In fact, in June, Facebook announced that it filed 9,000 to 10,000 government requests for user data between June and December 2012. Suddenly, cases like that of Justin Carter are no longer distant events that really have nothing to do with us. As Tamara Tabo of the renowned legal blog Above the Law so succinctly put it, “There but for the grace of God, go we.” Tabo posits that Carter will not be convicted of a crime, since there is no evidence to support claims that he was actually planning an act of violence. However, she wisely points out that Carter has still spent five months in jail without a conviction. Tabo says, “With terroristic threat laws, the suspicious talk itself is the crime, not just evidence of plans for one.” Normally, when a citizen suspects someone will commit an act of violence, they report it to the authorities and police investigate while the person is still free. If a person is accused of making a terroristic threat, however, he can be locked up during the investigation. Not only is it a violation of the First Amendment, it is a violation of the right to be considered “innocent until proven guilty.”

Image Credit: By DonkeyHotey [CC-BY-2.0], via Wikimedia Commons


Andrew Weisberg

Andrew M. Weisberg is a criminal defense attorney in Chicago, Illinois. A former prosecutor in Cook County, Mr. Weisberg is a member of the Capital Litigation Trial Bar, an elite group of criminal attorneys who are certified by the Illinois Supreme Court to try death penalty cases. He is also… MORE >

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