Guns

E-Mails With Graphic Anti-Gun Messages, Sent to Gun Rights Activist, Weren't Threats

So holds a federal court, concluding that such e-mails with photos of gun crime victims, coupled with statements such as "Thought you should see a few photos of handiwork of the assault rifles you support," were protected by the First Amendment.

|The Volokh Conspiracy |

From Hammer v. Sorensen (M.D. Fla.), decided Monday:

The plaintiff Marion P. Hammer, a nationally known advocate for gun rights, asserts that she received threatening emails from each of the four defendants. One, Lawrence T. Sorensen, has moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim on which relief can be granted. This order dismisses the claims against Mr. Sorensen for failure to state a claim. The dismissal does not affect the claims against the other defendants.

Mr. Sorensen sent Ms. Hammer two emails, each transmitting one or more photographs showing injuries from gunshot wounds. Sending these unsolicited to anyone, even a public figure who advocates gun rights, was inappropriate, indeed disgusting. As Ms. Hammer correctly notes in response to the motion to dismiss, "there are limits on how people can treat those with whom they disagree." Or at least on how people should treat those with whom they disagree. Emails like these should not be sent in a civilized society.

That does not mean, though, that emails like these can be made criminal or even tortious. Tolerating incivility, at least to some extent, is a price a nation pays for freedom. There is no clear line between incivility, on the one hand, and effective advocacy, on the other. Turning loose a legislature, judge, or jury to ferret out incivility would deter and even sometimes punish the robust public discourse that is essential to freedom—the public discourse whose protection is the main object of the First Amendment. See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 300 (1964) ("If individual citizens may be held liable in damages for strong words, which a jury finds false and maliciously motivated, there can be little doubt that public debate and advocacy will be constrained.")

Accordingly, not all inappropriate, disgusting speech is tortious, and not all otherwise-tortious speech can be banned consistently with the First Amendment. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53 (1988). Mr. Sorensen should not have sent these photographs unsolicited to Ms. Hammer, but Mr. Sorensen did not threaten Mr. Hammer, explicitly or implicitly. The text of his first email said only, "Thought you should see a few photos of handiwork of the assault rifles you support." Attached were three graphic photographs of leg injuries that probably resulted from gunshots. The second email's text said only, "This photo documents the effect of an outdated military rifle on JFK. Today's assault rifles are far more destructive." Attached was a photograph probably taken during the President's autopsy.

The photographs were graphic, partly because they apparently depicted actual injuries. But images as graphic, or nearly so, can be seen in movies and videogames, on cable if not also network television, and in medical literature. The photographs were germane to the policy debate that Ms. Hammer regularly participated in and Mr. Sorensen apparently sought to join. Sending these photographs, at least in these circumstances, was not tortious. And treating them as tortious would violate the First Amendment.

The matter might be different if Congress passed a law allowing recipients to demand that senders stop sending them e-mail of any sort (see, e.g., Rowan v. U.S. Post Office Dep't (1970), upholding a similar law for postal mail). But no such law was present here; instead, plaintiff sued for "cyberstalking," "harassment," "intentional infliction of emotional distress," and "intrusion upon seclusion," and whatever the permissible boundaries of those claims might be, I agree that they can't apply to the statements in this case.

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  1. Please, Hammer, don’t sue him.

    1. +1

  2. “The matter might be different if Congress passed a law allowing recipients to demand that senders stop sending them e-mail of any sort (see, e.g., Rowan v. U.S. Post Office Dep’t (1970), upholding a similar law for postal mail).”

    That’s not quite right since Rowan only addressed pandering (and subsequent courts expanded that to all advertising.

    This case involved speech, not advertising.

    1. Stay on twitter. Advertising is speech, postal mail is an analogue for electronic mail. I understand you’re busy being self-righteous, but, think, and ourside of in-group virtue-signaling.

      1. Commercial speech is subjected to a less vigorous form of scrutiny, so the same ban applied to non-commercial messages might be declared unconstitutional.

  3. Sending the autopsy photos of Channon christian and Christopher Newsom to an equal rights activist and claiming that is their handiwork is despicable speech- and protected by the First Amendment.

    Just like the e-mails sent to Hammer.

  4. I’m okay with this assuming that it applies equally to pictures of aborted fetuses and gay anal sex.

    1. Why wouldn’t it?

      1. I don’t know, but the left is pretty good at carving out exceptions to its rules for things it likes, or doesn’t like, as applicable.

  5. Sending these unsolicited to anyone, even a public figure who advocates gun rights, was inappropriate, indeed disgusting.

    Why? Many gun advocates apparently know no more about what guns actually do than what they see watching TV crime dramas. Or they suppose guns are for punching neat holes in paper targets. What can possibly be inappropriate about showing gun advocates, unsanitized, the consequences which follow when shooters do as the advocates advise. The images should not be seen as disgusting, they should be seen as shameful?but with any humanity at all, they should prompt self-disgust from the advocates.

    It is particularly praiseworthy that gun advocates be targeted individually with such images. Too broad a circulation would needlessly traumatize bystanders, non-advocates, gun opponents, and, most of all, shooting victims and their relatives. Put the information where it can do good?directly before the eyes of the fantasists who advocate as personal virtue the will to create such mayhem, and recklessly advocate as public good the multiplication of unchecked power to do it.

    1. IMO, what’s disgusting isn’t the sending of grisly images, but the flagrant ignorance behind it.

      Since guns are used defensively in the U.S. over a million times per year, preventing untold violence, rape, and murder, it’s the gun grabbers who should be subjected to horrific depictions of what their policy would result in.

      Of course, in the end this is not about guns at all, but about control and power. Monopolization of the use of force. It’s about the near-infinite increase of power imbalance that will accrue to the State and ruling elites when they achieve the disarmament of the people (but reserving for themselves, of course, the utmost in armed protection). So they should also see the hundreds of millions that governments have killed when gaining this level of power over their peoples, violence of the most unspeakable nature, the likes of which the world had never seen until the 20th century.

      1. M.L., I like common sense tests.

        I’m 72-years-old. In that time, I have known personally 5 people killed in traffic accidents. In the interval I can remember, starting in 1950, the average number of traffic fatalities per year was ~ 42,000. Now compare that to 1,000,000 defensive gun uses per year, a number about 24 times larger. Given that comparison, I would expect to have personal knowledge of 120 defensive gun uses. But I don’t.

        I have knowledge of only 3 of those. Among those, 2 involved guns used against me, when I had not the slightest awareness, expectation, or reasonable supposition that I was in any way threatening anyone. Because I wasn’t. One of the people pointing a gun at me (and shooting it, by the way, multiple times) turned out to be a paranoid schizophrenic, who was convinced he was defending against me because I was an agent of the FBI and the CIA, and God would judge me. The other was a woman who leveled a .44 magnum at me. I had knocked on her door after her boyfriend asked me to deliver a package. The third instance was a break-in I covered as a reporter. The guy breaking in was drunk (and unarmed), mistook the address, and died for it.

        This test could be full of flaws, but I don’t think it comes close to being off by a factor of 40X (120/3). Note also, no violence rape or murder was in prospect, no matter what the gun wielders thought at the time, or would have told a survey questioner.

        How many defensive gun uses do you know of personally?

        1. Stupid analogy.
          That’s like asking George Will, a 77 yr old journalist, and former philosophy professor, who was raised, by a philosophy professor, how many people he knows who have had ACL surgery, when you are a college football coach who was raised by a college football coach.
          Environment matters.

        2. The problem with trying to use common sense tests is that they require that one have common sense.

    2. So glad you’ve seen the error of your ways and come over to the constitutional side of things.

    3. So you would agree that anti-gun advocates could be targeted in the same fashion? With, say, images of some unarmed bystander killed by federal agents in he course of enforcing those gun laws? Like Vicki Weaver?

      Anti-gun advocates should be held responsible for the unintended effects of the laws they advocate, and so far haven’t been.

    4. “What can possibly be inappropriate about showing gun advocates, unsanitized, the consequences which follow when shooters do as the advocates advise. The images should not be seen as disgusting, they should be seen as shameful?but with any humanity at all, they should prompt self-disgust from the advocates.” The problem with both of these statements is that they are objectively lies. I have never heard a single pro-gun advocate say that people should use their guns for murder, not a single one. And people can suffer from accidents from any number of objects. The drano in your cupboard is just as dangerous in an accident as a gun. Also, no one should have self-disgust from the actions of others. If an object exists and is misused by someone, the problem is the person, not the object. Clearly my words won’t affect you because you struggle with basic reasoning but I felt the need to challenge you nonetheless.

    5. Is it safe to assume that you would have the same strong feelings of approval if someone were sending pictures of aborted fetuses to women who had abortions?

      1. Harvey Mosley, not safe to assume that, because it isn’t a parallel case. Make that sending pictures to a NARAL leader, and sure, it’s pretty similar, and I don’t say folks who think abortion is murder couldn’t consider doing it.

        One comparative problem I don’t know how to deal with though. My guess is the anti-abortion folks wouldn’t choose typical post-abortion photos. Not near graphic enough. They would go for the worst (and least typical) late-term images they could find. By comparison, merely representative gunshot photos would be adequately hideous.

        I’m indulging your subject change, however, to reinforce this point: I doubt anyone at NARAL would be much shocked, or in any way deterred, by looking at abortion photos. They know what they are dealing with. By contrast, my own experience with gun advocates leads me to think that many don’t have experience using guns to kill?even if only to kill game?and many really are in the dark about what it is they advocate.

        Certainly it would be better if they did go out hunting, or better yet, did a tour in a big city emergency room (and let the docs detail the gun advocates to inform parents their kid is going to live, but there is some brain damage, and he had his jaw shot off). But if gun advocates won’t do that, sending them pictures is a start.

        1. You know Stephen I think you’ve got a point. Let’s require advocates on all subjects to have knowledge of what they advocate for. And let’s require that any politician has to pass an objective knowledge test of the subject before they can introduce laws regarding the subject. But I don’t think you would like that since almost every anti gun law proposed in the last 30 plus years has been based on misinformation, lies, and emotion.

          1. I’d be fine with improving gun control laws. I agree with you that almost all of them seem pretty stupid. I’m less clear that the stupidity is inherent. I think it’s often a manufactured result, consequent to posturing. Anything efficacious has to be stripped out to permit passage, but gun-control constituents demand action, and at least get something that looks like action. A lot of them are smart enough to be disappointed, but figure it’s the best they can do for now. Then time makes it look even more stupid than it did when it passed.

      2. A correct analogy: If the Dry Forces who imposed local option prohibition 1953-1968 sent me who supported repeal photos of carnage from drunken brawls or D-U-I wrecks to try to shame me into accepting the Dry Law that promoted bootlegging and made things worse.

        A closer analogy: If, after I supported repeal of the sodomy law felonizing oral or anal sex between consenting adults, the blue noses sent me screen shots of Milo? from “A Serbian Film” sodomizing people to death to try to shame me into accepting a prohibition that criminalized foreplay or lovemaking between adults who were harming no one.

        I have followed the gun control debate since 1959. I helped typeset the first edition of James Wright, Peter Rossi and Kathleen Daly, “Under the Gun” for Aldine at Kingsport Press 1982-1983 multiple proofreadings. I also read the 2003 CDC and 2004 NRC reviews of peer-reviewed academic research on impact of gun laws on gun violence (papers that would make through the door of the American Society of Criminology and be published in academic journals under K42 Illegal Behavior and the Enforcement of Law).

        Several studies looked at the impact of right-to-carry or legalized abortion on the crime rate and included several weighting factors believed to impact criminal behavior: Moral Outrage of Prohibitionists and Shaming of Opponents of Prohibition were not included as factors in serious studies of impact of law on criminal behavior.

        1. Off topic.
          When I checked my memory of Daly’ first name, Amazon search responded to my search under Books: “Wright Rossi Daly Under the Gun” with
          We didn’t find results for “weight loss daily under the gun” in Books.

          (Books: Under The Gun James D. Wright found results.)

          I miss AltaVista, baby. I could construct Boolean searches that returned only what I wanted to search for. biased on meta tag keywords in the html,

  6. The second email (“This photo documents the effect of an outdated military rifle on JFK. Today’s assault rifles are far more destructive.”) shows ignorance of the difference in power between the Italian rifle round and the most common AR-15 round:
    _ 6.5x52mm Carcano, bullet weight 162 grains, velocity 2,300 feet per second, impact energy 1,897 foot/pounds, and
    _ 5.56mmx45mm, bullet weight 55 grains, velocity 3,260 feet per second, impact energy 1,294 foot/pounds.

    The 5.56x45mm NATO (.223 Remington) fails to meet the caliber and energy minimums to be legal for deer hunting in several states.
    The 6.5x52mm Caracano exceeds those minimums and is legal for deer, black bear, and boar hunting.

    If the assault rifle should be banned because the wounds are destructive, every deer rifle in America, including sporterized outdated military rifles like the Italian Carcano, should be banned.

    1. Stephen Lathrop should read this. It SHOULD disabuse him of the notion that gun advocates are just as ignorant of the damage guns can do as those who are not gun advocates. Alas, even if he does read the comment, he’ll still cling to his beliefs.

      1. Should read what? Did you mean to include a link?

        Or did you refer to the baloney from Naaman Brown above? I’m pretty tired of ballistics mumbo-jumbo used as one-upmanship and cited for red herrings. Of course most would-be gun controllers don’t know that stuff. So what? They may at least understand that the U.S. military didn’t choose the 6.5mm Carcano over the 5.56mm NATO?and even suspect there was some analysis behind the choice.

        Here’s a thought that occurred to me. How many aimed shots from a 5.56mm semi-auto do you think a typical civilian shooter could get off in the time expert marksman Oswald (for instance) could fire, work the bolt, and re-aim. I’d guess at least 3. So wouldn’t that be 3882 foot/pounds on target, compared to 1,897? Repeat as much as you want. The disparity increases proportionately.

        Even the 7.62?51mm NATO?despite it’s far greater ballistic power?didn’t work for the military as an infantry weapon as well as did the 5.56mm. Lots of reasons, of course?one important one being recoil. I suspect both you and Brown both understand the disadvantages of heavier recoil in an automatic or semi-automatic rifle used as a weapon. So why do you leave it out while calling other people stupid? I wish pro-gun advocates would be more forthright.

        1. The main reason for the 5.56 replacing the 7.62 was logistics. A soldier can carry more 5.56 than 7.62 AND (this one is important to the discussion at hand) the 5.56 was more likely to wound than to kill. It is less lethal than the 7.62. And on the battlefield a wounded soldier is logistically more desirable than a dead one.

          1. And your statement :

            ” Of course most would-be gun controllers don’t know that stuff. So what?”

            is pretty telling in that you think it is okay for someone to pass laws about something they don’t know anything about.

            1. Not JUST pass laws: but, also, and more flagrantly, constantly preen about how people who disagree with them are in favor of more dead children.

              1. Reason needs a like button.

            2. It only requires strong moral outrage and contempt for dissent.

              Moral outrage on the part of the prohibitionists and contempt for dissenters will reform the bad behavior of bad people and deter their bad acts. It’s emotional voodoo criminology.

              1. Naaman, problem I have is your use of “prohibitionist.” That’s not me. It isn’t anyone among the pro-gun-control folks I know. It isn’t where the gun control trend nationally is now headed.

                Of course prohibitionists on guns do exist. They are unlikely soon to be ascendant, no matter what paranoid propaganda the NRA spews.

                What could change that, I think, is continued intransigence from pro-gun advocates, coupled with worsening mass-murder experience nationwide. Put that together with increases in avowed insurrectionism, and/or the practice of displaying arms at political events, and you would get a surge in gun prohibition advocacy.

                If it comes to that, I doubt gun advocates will carry the day. Politically, you would be weak then, instead of strong now. Exploring forthrightly now, for meaningful compromise on both sides, would be wiser for both sides.

                Problem there is two-fold. First, gun rights advocates at the crest of their wave want to ride it for more. Second, gun rights advocates now loathe compromise?they entertain only concessions from would-be gun controllers. That can last only until pro-gun folks start to lose politically. Nobody always wins politically. You ought to consider what it would be like, with Heller gone, Democrats controlling congress and the presidency, and an enlarged Supreme Court. Those things could happen. Finding a compromise now might be better than waiting.

  7. “Emails like these should not be sent in a civilized society” — why? _If_ there is a plausible cause that the policies advocated by the recipient lead to the grisly scenes depicted, I don’t see what’s “uncivil” here. This isn’t some schoolyard personal slur about the recipient; it’s a factual argument about her public position. That there are contrary arguments does not make this one “uncivil”.

    1. I assume then you are okay with sending pictures of people dying of AIDS to anyone who supports gay marriage? Because that’s about as casually connected.

      1. Personally, I think sending these types of pictures is idiotic and does nothing beyond making someone feel like they “sure showed them.” Kind of like the Westboro Baptist Church’s awful demonstrations that are, as they should be, lawful.

      2. In a free society, you may e-mail anyone pictures of anything, and they may block you.

    2. Indeed. I can think of numerous situations in which displaying graphic images wouldn’t seem inappropriate; and certainly, not uncivilized:
      ?Images of mutilated fetuses, incorporated into anti-abortion material
      ?Images of mangled car-wreck victims, as part of a safe-driving campaign
      ?Images of Vietnamese girls with frightful napalm burns, used to undermine support for that war
      ?Images of children whose limbs have been blown off by land-mines
      ?Images of children who drowned trying to enter Greece illegally, or who died of thirst in the desert trying to enter the U.S. illegally
      ?Images of penile cancer, used to oppose an anti-circumcision proposal; or of botched circumcisions, used to support such a proposal
      ?Images of people whose faces have been horribly disfigured, as a result of tobacco-induced cancer

      We might argue that such use of such images is tactically ineffective, or in poor taste, but there’s a wide gap between “poor taste” and “uncivilized”.

      1. OSE: “?Images of mangled car-wreck victims, as part of a safe-driving campaign”

        I wonder — do they still show those car wreck films in drivers’ ed, with all the mutilated, dead bodies, like they did when I took drivers’ ed, so many years ago?

        I recall that they made most students not want to drive anymore, and the effect lasted about a week.

        Is there a point? I guess so. Such tactics have little effect (I remember my brother and I later nearly rear-ending another car when we were driving over 100 mph on the freeway). In the present case they’re used to shame the opposition, but the effect is largely blow-back — for example having to respond to a specious lawsuit.

    3. it’s a factual argument about her public position.

      It’s not a factual argument at all, but an emotional one.

      More importantly, while it may have been about her public position, it wasn’t a public response. People who inject themselves into the public debate on an issue should expect pushback — as part of the public debate. But not people tracking them down privately to remonstrate with them.

  8. I wonder if the court would have issued a different decision if the plaintiff was a supporter of abortion rights and the defendants were sending photos of aborted babies. The same rule ought to apply in both situations, but our judicial branch is so politicized that I could easily imagine many judges taking inconsistent positions in these cases.

  9. I’ve gotten hate mail after sending a letter to the editor to local papers about anything from sewer systems, taxes or guns. Never a return address. Rip, toss. Email is easier – delete.

  10. being an asshole doesn’t make one a criminal. it just makes them an asshole.

  11. Sorensen sent photos of bullet wounds with the messages “Thought you should see a few photos of handiwork of the assault rifles you support.” and “This photo documents the effect of an outdated military rifle on JFK. Today’s assault rifles are far more destructive.”

    “This order dismisses the claims against Mr. Sorensen for failure to state a claim. The dismissal does not affect the claims against the other defendants.”

    The case may proceed with Hammer’s claims against the other defendants whose communications were substantially different.

    News Service of Florida, “NRA’s Marion Hammer sues 5 men, claims she was target of ‘hate and vitriol'”, Tampabay.com, 16 Jul 2018.
    “Sorensen’s emails are noted in the federal lawsuit, but it doesn’t include him when alleging that Risica, Weiss, and Sullivan sent e-mails containing indirect or direct threats accompanied by personal attacks.”
    * * *
    “According to the lawsuit, Weiss emailed, “I pray every day that one of these ‘good’ people puts 100 bullets between your eyes so we can celebrate.”

    1. While Sorensen’s statement
      “Thought you should see a few photos of handiwork of the assault rifles you support”
      is not as bad as Weiss’
      “I pray every day that one of these ‘good’ people puts 100 bullets between your eyes so we can celebrate”
      his words are wrong even if not tortious.

      I have never read Hammer advocating malicious or criminal wounding with assault rifles or other firearms. And any wounds are the handiwork,deliberate or negligent, of the person using the weapon, whether firearms or other weapons including personal weapons. Assailants with personal weapons alone (hand, fist, feet, etc.) kill more people each year than assailants armed with rifles and assault rifles are a fraction of all rifles.

      It would better to act against criminals who do violence by any means. Some would rather hate and wish 100 bullets between the eyes of a grandmother with pro-gun opinions. It is certainly a lot easier and safer..

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