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Should Teens Be Arrested for the Stupid Things They Say on Social Media?

When does a prank become a threat, and what does the First Amendment have to say about that?

by Harry Cheadle
Apr 17 2014, 8:00pm

On Sunday morning, a Dutch teenager named Sarah made one of the most disastrous attempts to be funny on Twitter in history. The 14-year-old girl, whose now-suspended handle was @QueenDemetriax_, decided it would be a good idea to tweet “hello my name’s Ibrahim and I’m from Afghanistan. I’m part of Al Qaida and on June 1st I’m gonna do something really big bye [sic]” at the official account of American Airlines, which responded with an ominous “Sarah, we take these threats very seriously. Your IP address and details will be forwarded to security and the FBI.”

Naturally, she freaked like the kid in trouble she was, tweeting panicked messages to @AmericanAir that she was “kidding,” “joking,” “scared,” “not from Afghanistan,” and “just a girl” who “never did anything wrong” in her life. She briefly paused to take stock of her fame (“Over 2,000 RTs what”) before she was identified by Dutch police, turned herself in for making a false report, and was brought to a court hearing before being released.

It’s not clear that she’ll face criminal charges, but in the wake of her jokey “threat” came a storm of copycats tweeting warnings to American Airlines (and Southwest Airlines, for whatever reason); it was sort of like that scene in Spartacus except much, much stupider. Articles about this hot new teen trend generally took pains to castigate young twitterers like @twerkcunt for their poor choice of prank. Writing for the Washington Post’s style blog, Caitlin Dewey made sure everyone knew that this kind of trolling was NOT COOL, KIDS:

We hardly need reiterate the problems with this kind of thing: Airlines need to take threats seriously, no matter how silly they seem, which means a lot of airline employees (and presumably, police and security and FBI) are spending a lot of time tracking down nuisance threats, as well.

Leaving aside, for a minute, the vast waste of taxpayer money and manpower that represents, there’s another more ground-level problem here: This trolling completely destroys whatever incentives airlines have to engage with their customers on Twitter.

I would argue that if federal agents spent any time whatsoever tracking down Twitter user @comedybatman or the kids making “I think you guys are THE BOMB”–related puns, the resulting waste of taxpayer money is on them, not the trolling teens. But more importantly, the knee-jerk reaction here—tut-tutting at some kids for having some fun making incredibly distasteful jokes—distracts from the actual problem of teens getting arrested, or suspended or expelled from school, for things they've posted to social media.

Three weeks before the American Airlines incident, a pair of teens in Louisiana were arrested for making online threats against a school. A 16-year-old made a comment about putting an explosive in the cafeteria on Twitter, which resulted in East Ascension High School getting shut down while a bomb squad combed through the building; hours later a 15-year-old copycat tweeted similar things and got in similar trouble. Though no explosive devices were found, both kids were charged with terrorizing and cyberstalking.

This sort of thing happens all the time. Techdirt has done a particularly good job covering incidents in which social media chatter has gotten people (mostly teens) in trouble—the blog has written about young people getting thrown in jail for making jokes on Facebook or engaging in some hyperbolic trash talk or rapping about killing people or putting up threats just to see what would happen. Kids have been expelled for what were obviously jokes and suspended over completely innocuous posts, and adults aren’t immune to getting in trouble for this kind of thing—in 2010, a UK man was arrested for tweeting a joke about blowing up an airport and New York cops showed up at an American comedian’s door after he made a Fight Club reference on Facebook.

The “threats” the authorities responded to in these incidents are of varying levels of seriousness. Sometimes, as in the case of the Dutch girl, it’s fairly obvious that it’s just a kid making a stupid joke or trying to prank someone. Other times, the statement may seem legitimately disturbing—the 16-year-old who tweeted about blowing up the Louisiana high school had been expelled before he made his threats (though the local news account I read didn’t say what for), and there could very well have been some evil shit in his head.

Obviously, when writing about this subject, I should make a disclaimer: Don’t make threats against anyone online, even jokingly, or you might find yourself trying to explain your brand of humor to cops who have never heard of Twitter and barely understand what the internet is. But just as obviously, law enforcement, school officials, and other authority figures often do a piss-poor job distinguishing between actual threats and the hyperbolic language teenagers so often speak and write in.

“I don’t want to say that school officials overreact across the board, although I think that can and does happen on occasion,” Gavin Rose, an attorney with the American Civil Liberties Union of Indiana who specializes in education issues, told me when I asked him about how schools responded to students making threatening statements on social media. “I imagine that they are rightly putting the safety of their schools, their students, and their employees first. But in so doing, I think there have certainly been occasions where administrators have not recognized sarcasm, hyperbole, or other common forms of communication for what they are.”

Some teens using phones. Hopefully these girls haven't just committed a felony by tweeting about shooting up a school. Photo via Flickr user Tammy McGary

When administrators or cops decide to punish kids for what they say on social media, the “I was joking, OMG!” defense employed by @QueenDemetriax_ isn’t likely to be much help, especially when it’s their word against the word of an adult with a serious-sounding title. 

The line between jokes—which, in America, are protected speech under the First Amendment—and bona fide threats that can land someone in prison is blurrier than you might think. The US legal standard for evaluating statements like those that got the Dutch teenager in hot water is called the true threat doctrine. “In essence,” Rose said, “speech is protected unless an average, reasonable person would interpret it as a threat of imminent harm.”

But what's a "reasonable person"? According to Robert Richards, co-director of the Pennsylvania Center for the First Amendment, the standards by which courts judge threats to be threatening are often vague and sometimes contradict each other. The Third Circuit of Appeals has ruled that the objective standard—the “reasonable person” test—is the best one to apply to ominous statements, while the Ninth Circuit favors the subjective test—which requires the prosecution to prove that the speaker (or tweeter or facebooker) intended to make a threat.

Richards favors the subjective standard, which is the most protective of free speech. “People write things on social media that aren’t directly threatening,” said Richards, “but the language might seem threatening.”

If courts across America adopted the subjective standard, prosecutors would have a more difficult time going after kids who have made eerie statements, whether those statements were serious or in jest or just in a moment of anger—which might not be the worst thing.

“It does put the onus on the government to prove criminal intent,” Richards admitted, “but that onus is on the government in other parts of criminal law.”

In any case, some clarification on the subject is needed from the Supreme Court, Richards said. He recently joined other First Amendment experts in urging the nation’s highest court to take up United States v. Elonis, a case centered around Anthony Elonis, a Philadelphia man who posted bizarre stuff on Facebook about murdering his wife, some schoolkids, and an FBI agent. He claimed that his “rap lyrics” were just a form of venting, but a jury (and most of the federal courts that he appealed to) ruled that a “reasonable person” would have been threatened by the rants. Elonis is appealing because he thinks that the prosecution never proved he intended to threaten anyone—in other words, he wants his Facebook ramblings to be judged by the subjective standard.  

The Supreme Court has heard true threat cases a few times before. In 2003 the justices decided, in Virginia v. Black, that cross burning was OK as far as the Constitution was concerned, provided you aren’t trying to intimidate anyone. And back in 1969 the court heard Watts v. United States, which was about Robert Watts, an 18-year-old who in 1966 got up in front of a rally against police brutality in Washington, DC, and told the crowd, “If they ever make me carry a rifle, the first man I want to get in my sights is [president] LBJ.” Watts was convicted of threatening the life of the president, but the Supreme Court overturned the conviction because, duh, the kid was obviously using political hyperbole to make a point and because “he language of the political arena… is often vituperative, abusive, and inexact.”

Hey, kids, if you are writing blog posts about how Obama should be shot, you better hope that they fall under the category of political hyperbole! Photo via Flickr user Michael Surran

You could say the same thing of the language of the social media arena or the high school arena. And thanks to technology that allows teenagers—and others—to vent their fleeting anxieties and rages into empty text boxes and have those thoughts transmitted to thousands of people in an instant, it’s easier than ever for someone to make something that legally counts as a threat. That can result in serious consequences for unserious statements.

“The conversations that we used to have with our friends at recess or after school (or in the back row of social studies) are now being had in front of thousands of people,” Rose told me in an email. “Sophomores may not always act sophomoric without fear of repercussions.”

Unfortunately for teens, while it’s become easier for them to blast out hateful messages than ever before, the school system and law enforcement have become less forgiving. Thanks to zero-tolerance policies, it’s routine for high school students to be slapped with serious charges for what are fundamentally harmless youthful mistakes. While these policies are now being slowly reconsidered, young people are still being punished far too harshly for off-the-cuff remarks they’ve floated out for all the internet to see.

“Sometimes zero-tolerance policies can be zero common sense,” said Clay Calvert, the director of the Marion B. Brechner First Amendment Project at the University of Florida. “But after Columbine, judges are going to be hugely deferential to school officials.”

The fact that some of these kids wind up before a judge in the first place raises all kinds of questions. Airlines are prone to hyper-vigilance after 9/11, but does that justify the overreaction to @QueenDemetriax_’s tweet? How can we expect teens to understand what is and isn’t illegal speech online when the true threat doctrine is as muddled as it is?

Rose, the ACLU attorney, told me that he didn’t see the law changing any time soon, and the Supreme Court doesn’t hear many cases, so in all likelihood it won’t take up Elonis in order to clarify what a true threat is. That means individual social media users and authority figures must try to navigate the path between letting people speak their minds and sniffing out legitimate threats—something that’s going to become more important as social media becomes even more ubiquitous.

“We're going to see more and more of this type of behavior,” said Richards. “People say things on Facebook and Twitter because it's sort of cathartic for them to write them, but there can be legal consequences for that.”

People shouldn’t make fake threats—that sort of joke is hardly ever funny anyway—but school administrators and cops should be aware that teens say dumb shit on Twitter and Facebook all the time, and they should try to avoid handing down serious, potentially life-changing punishments unless the behavior warrants it.

In any case, the raft of articles expressing shock about kids tweeting “threats” to airlines for the lulz has not helped the situation, nor have crackdowns on kids who say crazy things on Facebook. Teenagers are going act like teenagers, even on the internet. That means adults need to act like adults.

Follow Harry Cheadle on Twitter.