Elonis, Reason, and Federal Subpoena Power

Ever said something nasty to someone else on the Internet?  Thought so.

You may want to reconsider the next time you do that, because now Federal Prosecutors are having their say in who can question them and who cannot.

This article by Ken White at Popehat explains the nuts and bolts of it better than I can, and you really ought to read it.  For those of you who do not care for such things, this is a brief summation:

Reason.com posted an article about the sentencing of Silk Road kingpin Ross Ulbricht.  It got a bit of negative backlash against the judge in the comments section, with people using the power of Internet anonymity to say this judge should be shot, shot in front of the courthouse, and fed through a wood chipper, among other things.  Now an AUSA for the Southern District of New York is sending Reason.com a subpoena for the identities of these commenters, and information beyond that scope to other organizations for the purpose of beginning a grand jury investigation against these commenters.  The purpose of doing so is to determine whether these commenters violated a federal law against interstate threats, and whether these comments were in violation of 18 USC § 115(a), which prohibits threatening federal judges.

What constitutes a "true threat?" Well, there's a lovely little bit right here that explains that for you:

"True Threats" are those threats that are outside the protection of the First Amendment; they are not mere political hyperbole or bluster. For instance, in 1967, when Mr. Watts said that if he were drafted the first man he'd want in his rifle sights was President Lyndon B. Johnson, that wasn't a true threat: it was conditional political hyperbole. In other words, it was mere angry bluster of the sort no reasonable person would take to be a serious threat.3

Comments on the Internet are rarely ever true threats.  This is the domain of the keyboard warrior, the person who regularly blusters about raping, murdering, and torturing those who disagree with them or who in their eyes are considered Wrong On The Internet.  I'd submit as well that most every comment on a blog with this sort of violent nature should not be considered a "true threat" as in many cases there will never be an action taken on said threats.  At least 97% of it is simply juvenile mouth breathing, and should be taken as such.

Oddly enough, this investigation comes right on the heels of the Supreme Court's decision in Elonis v. United States, where the Supremes had a chance to help the legal world understand what "true threats" in the eyes of the law really were.  They didn't, and disappointingly collectively punted the issue back to the courts by essentially saying the standard for true threats required more than subjective intent, but didn't really say what that something more was.  Again, I refer  you out to an excellent post by Tamara Tabo at Mimesis Law and another excellent "Lawsplainer" by Ken White at Popehat if you want to learn more about Elonis and how rap lyrics might not be considered "true threats."  The decision by the Supremes in Elonis has been analyzed time and time again by far better experts than I could ever hope to be, and I encourage you to check both pieces out.

The thing that strikes me as disturbing about all of this is the way the federal prosecutor is handling this matter in the wake of Elonis.  We know the High Court has said a "true threat" is something that requires more than subjective intent, but we don't know what yet constitutes that "something more."  Now in the wake of a federal judge getting some feels hurt, AUSAs are using their subpoena power to test the waters of how far this new punt by the Supremes will go.  This is not a reason to test the standard just set by Elonis, and a federal judge is insulated from many of the facets of life so he or she can do their job despite the criticisms that are meted out.  Yet now--with Elonis on the books--the AUSA's office of the Southern District of New York is attempting to test the waters to see where they can hand down convictions.

This is dangerous.  I'd encourage anyone reading this to keep an eye on this developing story, because if this investigation goes to a trial we've set ourselves a bad standard for free speech.

The Third Narrative: McKinney, Texas

There's a technique we use in collaborative practice called establishing the "third narrative."  It requires one to put himself or herself in the shoes of the other side, consider their points and yours, and then reach a point where one can construct a version of the events leading to the conflict that makes sense for all parties involved.  I'm going to use the recent events of McKinney, Texas, that are sparking social media to prove a point.

A fight broke out at a large pool party in a quiet suburb outside of Dallas, Texas.  Cops were called.  At least a dozen responded.  One threw a young black girl in a bikini to the ground and pinned her down by kneeling on her.  When a couple of other children tried to help the young girl, the same officer pulled his gun and started chasing after said kids.  The entire event was caught on video, and the cries of "racism" began.  It looked good enough to catch the attention of the national media, because stories about cops mistreating black youth are the rage these days (and sadly, most of the stories are true), and the police officer who lost his cool got suspended.

As the days pass following the incident, another story emerges.  This wasn't just a "pool party."  It was a private event that quickly escalated when a group of teenagers that fashioned themselves as "party promoters" started propagating the event on social media as an event with a DJ.  None of this was organized or condoned by the gated community where the incident occurred.  People were being charged $15 per person to attend the promoted event.  When several youth arrived, they began jumping the fence to the pool area even after being told to leave.  It didn't help that, according to one person who was a witness to the event, that the DJ "hired" for the party was playing expletive laden music at a very loud volume.

So some insults are exchanged.  A fight breaks out.  The cops come, and the rest is history.

So here's the third narrative, and I'm going to see if we can't string something that is a little bit truer to the story.

Let's start with the party.  I don't doubt a private gathering in the community was scheduled on that day, and I don't doubt that people outside this little gated community were invited.  What I foresee happening is that one of the invitees fancied herself a party promoter, and decided to make the event bigger than it ever intended to be.  The promoter also noted that there was a $15.00 fee per person for use of the pool in the homeowner's association rules when stringing together her promotional materials, and decided to list it as "$15 per person" when she placed it on social media.

The "promoter" probably never told the person who invited her about this, but she told many of her friends, who told many of their friends, and the day of the event far more people than expected showed to the party.  This is a facet of teen and young adult "parties" that has been a truism for decades; we see it play out repeatedly in movie after movie as a result.  The party got out of hand quickly, and many of the neighbors in this nice gated community took great offense to someone playing loud rap music at the pool with all the dirty words that shock the old into clutching their pearls and send them screaming for the nearest fainting couch.

I don't doubt at this point someone said something racially offensive.  When you have a tense moment such as this, one can tend to speak out of character.  "Go back to your Section 8 home" is an easy enough barb to hurl at someone.  We know that brought anger out in someone, who decided to turn this into a physical altercation.   That much is documented by photo and video evidence.  Then the neighbors had enough.  At this point, someone had called the cops.  Whether it was due to the large amount of people present in a space where they should not have been, or otherwise, a cadre of officers showed up and demanded utter compliance from these teens.

One officer was probably already on his way to snapping when the incident occurred.  Someone decided to give him some lip, and say something that wasn't in line with his requests for complete and utter obedience to the law.  That caused him to snap, charging at a young black girl, and pushing her to the ground in a control fashion.  Others came in to help her, but this cop--strung in the heat of the moment with tension and finally expressing himself in a fashion far beyond that which was ever reasonable--saw these children as "threats," and pulled his sidearm.

A teen nearby pulled out his cell phone at the moment the police officer charged the young black girl, and the entire incident sparked national attention and more cries of police racism.  The teen got his attention, the news got their story of how police are racist, and the world turned to another news cycle.

That's the beauty of the third narrative--it allows us to find ourselves in a moment of truth when we would normally be at a loss for words.  I suggest you try it sometime you find yourself advocating for one position or another.  McKinney, Texas is currently gripping their third narrative heavily.