The 2016 presidential election has been tense to say the least, the cause of "significant stress" in more than half of Americans, according to a recent survey from the American Psychological Association. It's the kind of time when even jokes can take on a violent tinge, when the specter of political assassination looms large in the imagination.
This weekend in Reno, Donald Trump was ushered off the stage when a protester was mistaken for a perceived threat. Trump himself has made offhand comments that some took to be comments about "Second Amendment people" shooting Clinton, and some of his supporters have given similarly grim statements to the press.
In times of heated rhetoric like these, talking shit about individual politicians is normal, and sometimes that shit-talking might turn kinda raw. But where does the First Amendment end and actual, for-real threats begin? What can you say and not say about presidential candidates?
To learn more about where the line between joke and real threat is drawn, and how not to cross it, I spoke with Mark Bartholomew, a professor at the University at Buffalo School of Law who specializes in cyber law and legal history.
VICE: One of your research focuses is cyber law—can you explain what cyber law means?
Mark Bartholomew: "Cyber law" is a term that deals with online communication and implementing new connective technologies. It really looks at how older bodies of law—contract law, constitutional law, property law—need to be reshaped in light of innovation.
Do First Amendment issues fall under cyber law?
Yeah, a lot. A lot of what cyber law is is new ways of talking to one another, particularly through social media, so there's a lot of free speech issues related to that.
OK. Let's say that one day I send a tweet out that says I want to shoot Hillary Clinton in the head. How likely is it that I get into legal trouble for that?
Not that many cases are reported, but there are cases I can look up in the pages of law books that talk about someone being prosecuted for making a threat to the president or another elected official. I would say that they do happen, I do see some of them, but a lot of these prosecutions might not be on the books—they might be something where someone agrees to a plea deal, and that wouldn't be recorded in a court decision. I would say that it's impossible to know the percentage likelihood that you would get in legal trouble, but there's definitely a possibility that you could get in legal trouble.
What factors would law enforcement look at to determine if I should be prosecuted?
The applicable legal standard is this thing called the "true threat doctrine." It asks, "Is this a true threat that we should take seriously?" when you sent that tweet. The true threat analysis examines the tweet both objectively (would a reasonable person see this as a threat) and subjectively (knowing what we do from the context of the situation, did this person really mean it when they said, "I want to shoot Donald Trump in the head"?). That's how we'd evaluate this. If the objective and subjective standards are met, then it's a true threat, and the doctrine says that First Amendment concerns can be overwritten because true threats are serious enough, dangerous enough, to prosecute. You don't have the right to kill somebody, and if you're close enough to making that true threat, then you can be punished regardless of free speech.
Do you think the rubric for deciding true threat is fair?
In those abstract terms, I do think it's fair. I think that there's sort of this hazy line between speech and conduct. It's fine to regulate conduct for the most part, but because of the First Amendment, we really, really frown on regulating speech. So the true threat analysis tries to get at when we are so close on that speech line that it's about to tip over into serious conduct that should be prohibited, and that it's OK for authorities to go in and punish someone.
The problem, I think, is that it's still pretty hazy, and it gives a lot of discretion to law enforcement, and even the judges assigned to these cases, about if the true threat standard was really met. So that's maybe the more problematic part.
If I'm brought to trial, would a judge and a jury have access to all of my online communication history? Would Facebook and Google just hand over my online profile if asked to?
Not necessarily. The prosecutor would have to make a reasonable case that there's real suspicion to access all of your online communications. But, once they establish that a threat has been made, a prosecutor can definitely make a reasonable case and say, "Well, we need to know more about the context. We need to know more about what was surrounding these tweets or these posts, so we can decide if this person really had this subjective intent to go through with it." So if they can make that argument—that we shouldn't just have access to this tweet, we should have access to this whole history of tweeting, so we can make up our minds about whether this is part of a pattern of violent expression that would suggest that you meant to go through with the threat—they could make a case for this to a judge, and a judge could allow this information to be disclosed.
The only thing I'd add to that is we do see a lot of situations where these companies—Facebook, Twitter, Google—are handing over people's online histories thanks to law enforcement requests. (Editor's note: Each of these companies have guidelines for handling these requests.)
What about threats that happen offline? Let's say I make a threat at a public rally—what could they look for as far as evidence to use against me?
If you threaten to shoot someone, they might say, "Well, let's get a warrant to search their home and see if they have a gun. Oh, they have a gun?" That threat is now more likely to satisfy that true threat standard. But that kind of search for evidence would apply either way: You make a threat online, they're gonna investigate your offline activities; you make a threat offline, like in a public rally as you suggest, they're gonna ask to investigate your online activities.
There are gonna be a lot of people upset regardless of who wins this election. Hypothetically, what could happen if threats were being made by an organized coalition of people saying stuff like, "Hillary Clinton needs to be put in jail or shot in the head"?
I've never seen the true threat doctrine [used] to round up a bunch of people at once. It's specific enough where I don't think you would be held responsible in guilt by association if you're at a Trump rally and the person next to you makes one of these threats to kill a president.
The thing that should probably be more concerning in light of social media is that it's easy to pinpoint who was at these rallies, now. We organize them through social media, and these lists are easily accessible by law enforcement, so it might not be that you would face the same consequences as the person at the rally who made the true threat, but if law enforcement decides to take these things seriously, they might look and ask, who is involved in these rallies? Are there other things that we should be worried about? Is there reason to engage in more surveillance of them, because they're at these rallies and there have been violent claims made at them?
Any advice on how people can still express themselves under the First Amendment but avoid the possibility of being accused of a cyber crime?
I guess I would just say you need to practice good digital hygiene, and there are two things I can think of in that regard.
One is: Think about who your audience is. There's a greater likelihood of other people noticing, of law enforcement noticing, if you broadcast it out there for all sorts of people to see on Twitter versus other kinds of online communication where you're careful to mention this to a discrete audience. It's true that anything you say online is being collected somewhere, and potentially open to future scrutiny, but the smaller the audience, perhaps the less chance of detection and maybe the less chance of law enforcement being interested.
The second thing I'd say is: Let off steam, but don't threaten to kill an elected official! The specific law on the books is about threatening to kill an elected official. You can say what you want about how you disagree with Donald Trump or Hillary Clinton's policies. You can say what you want about their character. Just don't rise to the level of violence, and technically you should not be running afoul of the law.
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