True threats and double agents

The internet can be a mixed-up, crazy, shook-up world. A commenter on Boots & Sabers leaves a rambling post expressing outrage at the level of teacher's salaries and West Bend and suggests that the shooters at Columbine High School, who he calls Young Republicans, had the solution. "One shot at a time." Here is the post:

Looking at those teacher salary numbers in West Bend made me sick. $60,000 for a part time job were (sic) you 'work' maybe 5 hours per day and sit in the teachers lunge (sic) and smoke the rest of the time. Thanks God we won on the referendum. But whining here doesn't stop the problem. Weve (sic) got to get in back of the kids who have had enough of lazy, no good teachers and are fighting back. Kids like Eric Harris and Dylen Klebold members of the Young Republicans club at Columbine. They knew how to deal with the overpaid teacher union thugs. One shot at a time! Too bad the liberls (sic) rip them; they were heros (sic) and should be remembered that way."

The folks over at West Bend High School either get genuinely concerned - or see a chance to make what they think is a point - and go to the cops. Here's a guy threatening to shoot a teacher.

But it turns out the offending poster is James Buss, a teacher. Lest we think that he is a self hating teacher seeking suicide by homicidal maniac, it turns out that he is the former president of the Oak Creek teacher's union. He was either trying to be sarcastic or to discredit critics of the level and nature of educational spending.

But the cops arrest him and here is where the fun really begins. Can he be prosecuted or was he engaged in constitutionally protected speech?

The pertinent Supreme Court thread here is those cases permitting the state to prohibit only "true" threats. In a recent case, the Supreme Court upheld, in part, a statute outlawing cross burning with the intent to intimidate.

But ... the Court (although different Justices had different reasons) also held unconstitutional the statute's presumption that, if you burned a cross, you did, in fact, intend to intimidate. And, in the course of her opinion for the majority, Justice O'Connor seemed to announce a more subjective test for true threats than had been the case:

“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States, supra, at 708 (“political hyberbole” is not a true threat); R. A. V. v. City of St. Paul, 505 U.S., at 388. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.” Ibid. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. the Court upheld a statute that criminalized cross burning with the intent to intimidate.

Some lower courts have interpreted this to mean that the speaker must have intended to communicate a threat. Prior to this, the test had generally been understand to be objective, i.e., how would reasonable recipients of the message understand it?

Of course, there is still an objective aspect to all of this. The threat must be "serious" and I think there is an issue as to whether any one could reasonably have read the comment as serious. It's exaggerated nature and reference to the Young Republicans suggest that it is either satire or an obvious (and badly executed) hoax. But lunatics say many things and let's assume that it could be taken seriously.

Did our hoaxer intend a "serious threat"? He certainly wasn't really threatening the West Bend teachers, but the Court has told us that is apparently not determinative.

Normally, we know that the speaker at least intended the sentiments expressed. Kluxers who burn a cross may not intend to intimidate, but we know they aren't expressing a message of racial harmony.

Buss. however, is either a clumsy and unfunny satirist or a doubled troll. He is a riddle, wrapped up in a mystery, inside an enigma.

Of course, if he intended the post as a satire, he did not intend it to be a threat.

But what if he intended a hoax ? What if you see Buss, as Owen Robinson did, as "posing as a conservative, right-wing whack job to discredit" critics of teacher's salaries by suggesting that they are the type of people who would act violently?

If that is what he was up to, then couldn't you say that he did intend to make a serious threat? He wanted people to take it seriously, so they would think poorly of those with whom he disagrees. Maybe it was a "true threat" and he can be prosecuted.

My lawerly instincts tell me that Buss should not be prosecuted. Even if you take the post at face value, the threat was not direct enough. In addition, he left a later comment saying that he was not advocating shooting teachers and attributing his attitude to a local radio talk show host Can you treat something as a trie threat when it is immediately disavowed? Nor do I think that a jury could find beyond a reasonable doubt that it was not intended to be satire. But it's a nifty problem.

One thing does seem clear. Owen reports that the West Bend police told him that they didn't think that the poster intended to harm anyone but that he had to be punished because the post might encourage someone else to act violently. That would seem to be clearly unconstitutional.