I agree with that sentiment, but I strongly disagree that a threat to mass murder children is merely “stupidity.”
Really? According to your supreme court, which I already quoted and will again, “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action.” Now as a mere jailhouse lawyer who did time in another jurisdiction, I could be way off and totally reading that wrong, but that seems to clearly illustrate that there is no 1st amendment issues with this case. Dammit, where’s Bricker when you need him?
We recently had a case of a high school student who wanted to shoot up his school, and tried to enlist others in his plan. He wound up with a sentence of about a half dozen years in prison.
A local attorney wrote an impassioned letter to the editor about how others had vouched for the kid’s good character, it was an unfortunate mistake, and now his life was being ruined unfairly. The letter appeared in the paper the day of the Cruz shooting.
I’m not sure that Brandenburg (where your quote comes from) is particularly helpful here. That had to do with advocating violence to be performed by others. And recognized a difference between advocating the “moral propriety or even moral necessity” of violence and actually advocating imminent lawless action. The links posted don’t seem to provide much information on the nature of the “threat” but it doesn’t look like it advocates violence by others.
A more relevant decision might be this one from the Fifth Circuit which holds that “student speech that threatens a Columbine-style attack on a school” is not protected by the First Amendment. It’s not a criminal case (it involved public school discipline), but it seems on point.
As Falchion noted, it is from Brandenburg v. Ohio , which I found on the wiki page for United States free speech exceptions. It’s jailhouse lawyer internet legal research at it’s finest, which is why I was hoping that someone who actually had a clue would chime in, so thank you Falchion.
I’m rethinking this last paragraph. I don’t think it’s true that something that is not protected by the First Amendment for purposes of school discipline (under Tinker and Morse) would necessarily be unprotected for the purposes of criminal prosecution. For example, I don’t think anyone thinks that the “Bong Hits 4 Jesus” could have been criminally prosecuted for his sign.
So, I think that the proper context is the “true threats” line of cases which seem to suggest that the test is whether the person " intentionally make[s] a statement, written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to" commit some crime. (quote from here).
Thanks for this explanation. I was trying to prepare to make this argument, but you’ve stated it more eloquently than I could have.
I think we still don’t know what exactly the kid(s) said, and who they said it to, which is probably what this really hinges on, but I can certainly imagine some variations of distasteful statements that would NOT be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to commit a crime. ETA: for example, a kid joking with a buddy during a boring class “I just wish someone would come in here and put us all out of our misery” or something like that.
Sure, I’ll adjudicate any case made for, and against, these potentially violent psychopaths. What part of, “Police and school authorities had more than enough opportunities to have that monster appear before a court-ordered, mental health evaluation. If they don’t actually put these psychos into the system, the system will fail to help them, or to protect the rest of society.”
And? What is your opinion? Does threatening to shoot up a school create a means to deny the sale of firearms to these boys, by reason of mental illness or other legal conclusion?
What part of “court-ordered, mental health evaluation” don’t you understand?
Police and school authorities had more than enough opportunities to have that monster appear before a court-ordered, mental health evaluation. If they don’t actually put these psychos into the system, the system will fail to help them, or to protect the rest of society."
Repeatedly stating that he was going to shoot up a school, and repeatedly stating that he could have done a better job of shooting up a school than some other psychopath, sounds like a pretty gosh darn good reason for a judge to seriously consider involuntary hospitalization. And that, if entered into the system, would have flagged this monster and prevented him from purchasing firearms.
Unless you believe that school authorities, as well as the various police agencies involved, were simply harassing this poor, unfortunate orphan?
You can’t be involuntarily committed unless you are, in fact mentally ill. That’s a medical question, not a legal one. Immaturaty, anger, a desire to shock and a lack of appropriate boundaries are not necessarily symptoms of mental illness, especially in an adolescent. The mere fact that somebody threatens to attack a school does not prove that he is mentally ill.
So, the court orders his assessment, and the assessment reports states that, whatever his other problems, he does not appear to be suffering from any mental illness, and there is no basis for sectioning him under the mental health legislation. Now can he have a gun?
Checking my Australian English translation guide, I find that “sectioning” means the same as what you called earlier “involuntarily committing”, i.e. to a mental institution?
It seems the standard in the US which on the whole tends to be (IMO as a non-lawyer) “threats are illegal and not covered the 1st Amendment, most everything else is*”. This seems the correct attitude to me. Threats are a well defined concept in law, going back to long before the US was a thing.
Other countries which have made “extremism” or “hate speech” illegal have impinged the right to free speech for their citizens, in a way that has made society less free IMO
One of the other exceptions being “giving material support to terrorist groups”. Which seems a bit more wooly and lest well defined, but not unreasonably so IMO.
Seeing as we know basically nothing about what was said, it is a pretty big leap to assume based on the facts presented that these children psychopathic monsters from whom society must be protected. As opposed to arsehole kids who said something shitty and stupid.
Yeah the authorities could just have saved the school from the next school shooter. Or they could have massively over reacted to some dumb kids running their mouth. Given their track record w.r.t. to this kind of thing (even at the best of times, let alone in the aftermath of yet another mass shooting), I would not assume the former.
That said as general point (as mentioned in last post) I have no problem with principle that threats are not covered by the 1st Amendment.
It is impossible to know beforehand whether a threat is credible or the work of dumb kids running their mouth. Therefore every threat has to be responded to. Because of this every threat should be a crime. Even the false ones make it more likely the real ones will slip through.
This seems to get perilously close to thought police.
People running their mouth happens a lot. Would you be ok with a visit from federal agents if you said, during a discussion in a bar with your friends, that you wished some politician would die?