Free Speech

Snapchat Fantasy Talk About Killing Isn't a Threat When Not Intended to Reach Alleged Target

|The Volokh Conspiracy |

So the Michigan Court of Appeals held yesterday, in In re. J.P. (written by Judge Elizabeth L. Gleicher, joined in full by Judge Brock A. Swartzle, who also wrote a brief concurrence, and concurred with by Judge Michael J. Kelly as to everything except the first two paragraphs):

Young teenagers sometimes make poor judgments born of impetuosity, immaturity, and an inability to foresee the painful consequences of their actions. Here, four teenaged girls decided they did not like a 13-year-old boy, and fantasized via group text messages about killing him, his dog, and even his goldfish. The texts are not pretty or clever. They also were not sent to the boy. He learned the content of the hateful messages from his mother, and never actually read them.

The prosecutor charged one of the girls, respondent JP, with a violation of MCL 750.540e(1), which subjects those who send text messages intended to "terrorize, frighten, intimidate, threaten, harass, molest or annoy" another person to criminal punishment. Despite that no evidence supported that respondent intended that the boy would ever see the text messages, a jury adjudicated her as responsible for the violation and the trial court entered a dispositional order. Because no evidence or reasonable inference suggests that the teenagers intended to terrorize, frighten, intimidate, threaten, harass, molest or annoy the teenaged boy discussed in their texts, we vacate the orders of adjudication and disposition….

No evidence supports that respondent intended to harass, terrorize, annoy, or otherwise interfere with S's peace and quiet. Rather, the great weight of the evidence demonstrates precisely the opposite: none of the Snapchat participants intended that S would ever read or see the texts, or would ever feel threatened by their existence…. [E]ven if a recipient does receive a … communication, the "listener's subjective perceptions, without the necessary intent on the part of the caller" do not make out the crime. The focus remains on the intent of the sender.

The prosecution asserts that respondent's "[m]alice is apparent from the graphic nature of the threats and the attempt to build consensus on hating [S] with whoever else was in the group chat." This argument disregards the language of the statute, which requires that the maker of a threat intend that the threat disturb or otherwise negatively affect "another person." The nature of the language, standing alone, does not make out the crime, nor does the fact that violence was discussed…. MCL 750.540e survives constitutional scrutiny precisely because it pairs speech with a speaker's malicious intent that the content of the speech be communicated to a listener, and some form of follow-through on that intent.

For a similar federal case involving adults, see U.S. v. Alkhabaz (6th Cir. 1997). Thanks to Michael Smith for the pointer.

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  1. My brother and I fantasized about stuffing our parents into a battleship shell with iron maiden type spikes on the inside. We were pretty ignorant; 16 inch diameter is not much room even if such shells had thin skins, the shock of firing would have smashed them to jelly, and the rotation would have smeared the jelly around the insides. Not the torture we wanted 🙂

    My mother used to say “So and so ought to be taken out and shot” when somebody vexed her. No one took her seriously.

    I imagine just about everybody has fantasized at one time or another about how to torture or kill somebody.

    What a bunch of snowflakes we have become!

    1. Did your mother publish her threats world-wide? Do you have any reflections on how that might have changed the situation if she had?

      1. Funny you bring up publishing her threats here, but below you ignore that these kids did not publish their threats. You really ought to strive for some consistency.

        1. Funny you bring up publishing her threats here, but below you ignore that these kids did not publish their threats.

          How do you suppose the student’s mother discovered what was going on?

          I replied to your remark. Are you ready yet to reply to mine?

          1. Stephen Lathrop, once again not reading the opinion he is critcizing.

            “The messages came to light only after someone mentioned their existence to S, who asked Me about it. S’s mother informed the school principal of the existence of the Snapchat. The principal brought the girls into his office, seized their phones, and contacted law enforcement.”

            1. If the messages were private, how did “someone” come to know of them? Manifestly, the messages were not private. Sanpchat, is, of course, a means of publication, and advertised as one.

              1. “If the messages were private, how did “someone” come to know of them?”

                Could someone have possibly told someone else about them? Even in this day and age, kids still do talk to each other.

                “Manifestly, the messages were not private.”

                Yes they were.

                “Sanpchat, is, of course, a means of publication, and advertised as one.”

                No, the private-message feature of Snapchat is not advertised as a method of worldwide publication.

                1. JPH, you need to look up the legal definition of “publish.” I’ll save you the time: Telling one person about something is “publishing” that thing. In the legal world, it is not synonymous with “make widely available to the public.” Posting on Snapchat by law is “publishing.”

                  1. D-Pizzle this is what we are discussing:

                    “Did your mother publish her threats world-wide?”

                    Which is why I said “No, the private-message feature of Snapchat is not advertised as a method of worldwide publication.”

                    But thanks for playing.

              2. “If the messages were private, how did “someone” come to know of them? Manifestly, the messages were not private. Sanpchat, is, of course, a means of publication, and advertised as one.”

                Did you read the post? The criminal mens rea of this charge is not met when the defendant had no intent to terrorize, etc the victim.

                On the other hand, a statement published in this manner could give rise to a civil claim for defamation, if it caused monetary damages.

  2. So no problem with inciting the Comet Ping Pong attack? No problem with internet hate-fests by school cliques, who drive specifically targeted disabled students to drop out of school, or even kill themselves?

    I suggest the reasoning used in the OP is rooted in pre-internet reality. It needs updating to account for what happens in today’s much different world of cost-free, unedited, anonymous, world-wide publishing for everyone.

    For starters, the notion that targets of internet hate will somehow remain oblivious to attacks published against them seems unreasonable. No reasoning of legal consequence should be predicated on such an unreliable expectation.

    1. Perhaps you missed the part where the”target” didn’t even know of the ramblings. For the student: discuss how this differs from driving disabled students to drop out of school or even kill themselves.

      1. The latter is one of Lathrop’s go to fantasies. He uses this imaginary scenario all the time, but it gets much more vivid usually. (In fact, it usually doesn’t involve the Internet; he’s just repurposing it here.)

        1. What “imaginary” scenario do you have in mind, David?

          1. Your “driving disabled students out of school or even kill themselves” one, obviously. Usually you have them throwing the kid’s books into the girl’s bathroom or something, though, too.

            1. David, you have a good memory for actual occurrences. But not for the worst ones, by a long shot. Not once on this blog have I ever exampled an instance of school bullying which I did not know about from first-hand information.

    2. re: “today’s much different world of cost-free, unedited, anonymous, world-wide publishing for everyone”

      Thpppbbb!!!!!

    3. “No problem with internet hate-fests by school cliques, who drive specifically targeted disabled students to drop out of school, or even kill themselves?”

      As opposed to in-person hate-fests by school cliques, who drive specifically targeted disabled students to drop out of school, or even kill themselves? Does it matter to you that maybe the girls weren’t just mean girls but were instead reacting to the boy doing things like pushing their books off their desks?

      And the only world-wide publications of the texts happened as a result of this opinion.

    4. Remember the scene in Twelve Angry Men where Henry Fonda demonstrates how meaningless the phrase “I’m going to kill you” has become?

      I share at least some of your concern about the toxic culture of the Internet. But you can’t solve that problem by creating thought-crimes, or expanding the notion of a “threat” so broadly that innocent people are prosecuted for musing things they have no intention of doing.

      1. Dilan, you can adjust the laws and customs of society so that people become aware of the differences between speech and publication. Those were honored perforce for centuries, so it can be done. Formerly, duels were fought over that difference.

        Mostly, what happens on the internet is publication. All you have to do is read the comments here to see that plenty of folks are either unaware of that difference between speech and publishing, unaware that it matters, heedless about it, or view it as an enhanced opportunity for malice.

        That needs to change, because social norms on this question probably will not. If they do, it will be change for the worse. Anyone who supposes that making that change happen will introduce into society onerous new restrictions is simply ignorant of norms and laws which had worked fine for centuries. Unfortunately, those could not accommodate the internet without some deliberate adjustments, which have yet to be made. So it has not been a smooth transition.

        1. “All you have to do is read the comments here to see that plenty of folks are either unaware of that difference between speech and publishing, unaware that it matters, heedless about it, or view it as an enhanced opportunity for malice.”

          Just as in your quixotic quest to defend a copyright troll from discovery sanctions, the only person demonstrating ignorance about the facts and the law of this case is you.

        2. “the differences between speech and publication”

          If I write something to you on a napkin from across the table, is that publication?

          1. No. Nor would a private email be publication.

            1. What’s the difference between a private email and what happened here?

    5. For starters, the notion that targets of internet hate will somehow remain oblivious to attacks published against them seems unreasonable.

      Which has absolutely nothing to do with the case on point.

      What part of what actually happened in this instance rises to the level of: “text messages intended to “terrorize, frighten, intimidate, threaten, harass, molest or annoy” another person”, which clearly indicates communication intended to be seen by the target? This was a private group chat, private indicating that it was not intended to be shared outside the group. That he eventually saw it is completely irrelevant. If the girls had actually killed the boy or his goldfish, the texts would be evidence of conspiracy and still wouldn’t be evidence of a threat.

      The jury came to a seriously unjustifiable conclusion. Bad defense, bad instructions from the judge, or just a case of an unlikable defendant?

      1. Stephen wants a traditional editor/publisher in charge of editing “group text message” chats among high school girls on their personal phones before permitting “publication” to maintain the high standards upheld by the publishing industry for centuries.

        1. From the PDF of the ruling: “On cross-examination she [schoolgirl using screenname “Lady Gaga”] agreed that she “never thought any of this would get back to S.”
          So the publication was not intended for publication?

      2. One point which might prove a helpful legal norm for the internet age: if you are using a publishing medium to circulate allegedly private messages—and if your intent to be private has legal implications (as some are claiming here)—you are acting recklessly.

        1. What is the legal standard for reckless conduct, and how would that apply here?

          According to the target of the jokes, he hadn’t seen any of the texts at least until the trial.

        2. Stephen, the fact that you take pictures does not mean you understand copyright, and the fact that you once ran a newspaper does not mean you understand publishing.

          Snapchat is not primarily a “publishing medium,” even using your mistaken concept of publishing. It is a communications app. (There is a feature to distribute — what you mistakenly call publish — snaps. But it’s not what the girls were doing.) It is functionally no different than the girls passing notes to each other in class.

          1. David, if someone deliberately distributes a snapchat, that’s definitely a publication at least for purposes of some torts, like defamation. Sometimes publication of a statement to a single person is tortious.

            The key point to me is that for a threat to be published, there needs to be evidence that it is (1) targeted and (2) meant to be taken seriously. But I could see a case, under different facts, where a true threat could be published via snapchat. (Indeed, the fact that snapchats are self-deleting might even make it an attractive platform for some people engaging in illegal threats.)

            1. “I could see a case, under different facts, where a true threat could be published via snapchat.”

              Of course, and the different facts would simply be that the communication was actually sent to the victim.

              1. Right. Or even that it was published to a group of people, or widely, with the intention that the victim would see it.

                1. Agreed. I made the same point about defamation above too before I saw your post.

                  It occurred to me that failing to understand how social media like Snapchat works is a factor in this discussion.

            2. David, if someone deliberately distributes a snapchat, that’s definitely a publication at least for purposes of some torts, like defamation. Sometimes publication of a statement to a single person is tortious.

              I’m aware. I’m discussing a specific context. Hell, speaking can be “publication” for the purposes of the defamation element — but that’s not what Lathrop’s talking about. He’s talking about the distributor/publisher distinction as to who is liable.

  3. Lets say that person A says to person B that they want to kill person C, in a private form of communication.

    B then shares this (either publicly or specifically with C).

    Did any crime happen?

    How about if it’s planned this way, so that nobody makes a public threat but threats are publicized?

    1. It might be a crime by person B depending on what was said and how it was said. Simply neutrally reporting that A wants to kill C wouldn’t be a crime by B.
      If it was planned by A, then it would be a crime by A and B. The threat doesn’t have to be public, it has to be intended to reach the target.

    2. The court mentioned that intent was important. If A intended it as a threat it’d be criminal for A. If B passed it along to intimidate C while A did not intend it as such then it’d be criminal for B.

  4. From the footnotes: “Lady Gaga found a clean version of this photograph for the Snapchat thread. The image has since been licensed on the Internet and that version is included in this opinion.”

    The photograph? A woman smiling while pointing a gun at a goldfish she is holding in her other hand. Clearly meant to be taken seriously as a threat.

  5. The pussy pass wins again!

    1. Would you say there was a penis pass in U.S. v. Alkhabaz (6th Cir. 1997), the case I noted was analogous to this one?

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