Note : Since the meme references an FBI agent, this post is a discussion of freedom of speech in the United States only.
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SUMMARY (TL/DR):
CuckTears suggests that an incel can be held criminally liable and convicted for speech, under U.S. law, should a reasonable person perceive such speech to be threatening, notwithstanding the statement "in MINECRAFT".
Actual U.S. law suggests that speech adjudicated out of context, under the "reasonable listener test", or under a standard of proof requiring only negligence on the part of the speaker, would, in fact, be constitutionally insufficient and violate the First and Fourteenth Amendments.
Introduction
This essay is (sort of) a response to the following thread on Reddit. But for a while, I've also wanted to address the trend of individuals adding "in minecraft" to the end of every edgy statement, and what the First Amendment would say about it.
View: https://www.reddit.com/r/IncelTear/comments/o52gfr/thats_not_how_that_works/
View: https://www.reddit.com/r/IncelTear/comments/o52gfr/thats_not_how_that_works/h2ko000?utm_source=share&utm_medium=web2x&context=3
View: https://www.reddit.com/r/IncelTear/comments/o52gfr/thats_not_how_that_works/h2kt8au?utm_source=share&utm_medium=web2x&context=3
View: https://www.reddit.com/r/IncelTear/comments/o52gfr/thats_not_how_that_works/h2m9zjs?utm_source=share&utm_medium=web2x&context=3
What makes a threat?
One of the earlier cases addressing the “true threats” exception to the First Amendment dates back to the Vietnam era. During an anti-war rally, an 18-year-old subject to the draft proclaimed, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” For this utterance, he was arrested by the Secret Service. In Watts v. United States (1969), the Supreme Court ruled in favour of the young man and noted that facetious or hyperbolic statements, which are protected by the First Amendment, had to be distinguished from “true threats”, which are not.
What the Supreme Court failed to do in Watts, however, was fully develop and articulate a detailed test to categorize “true threats”. As such, lower courts have had to reach their own conclusions on what “true threats” are. In the intervening years some federal appeals courts and state courts have read the Watts opinion to develop the Watts factors, where the courts consider 1) the context of the statement or statements in question; 2) the reaction of the recipient or listeners; and 3) whether the threat was conditional. Some courts have developed narrower definitions of “true threats” that are more protective of the First Amendment. The U.S. Court of Appeals for the Second Circuit, for example, define a “true” threat as a threat “on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.” (See United States v. Kelner (2nd Cir. 1976)) To this day, multiple courts at the federal and state level still operate on slightly different definitions of "true threats".
As another example, one of the Supreme Court’s more recent cases considering the definition of “true threats” can be found in Virginia v. Black (2003). Black involved two white men who had set up and burned a cross on the lawn of an African-American neighbour and were consequently convicted under a Virginia statute outlawing cross-burnings. In Justice O’ Connor’s plurality opinion, the Court noted that a "true threat" is one:
The question of intent
Black, however, raised another constitutional question, one concerning due process. The Court partially struck down the Virginia statute against cross-burning because the law considered cross-burning to be prima facie evidence to intimidate. The Supreme Court reasoned that such a presumption places the burden of proof on the defendant to demonstrate that such cross-burning was not intended to intimidate, and consequently violated the Due Process Clause of the Fourteenth Amendment.
In simpler terms, here’s a new constitutional question: for the government to punish someone for issuing a “true threat”, does a) the government need to prove that the speaker intended to communicate a threat, or b) is it enough for the government to prove that a reasonable listener would have considered it a threat (“reasonable listener test”)?
Just two years after Black, U.S. Court of Appeals for the Ninth Circuit said yes to a) and no to b). In United States v. Cassel (9th Cir. 2005), Judge O’Scannlain wrote that in punishing a threatening communication, a jury instruction that fails to include “a mens rea element of subjective intent” would not comport with the First Amendment. (For another appellate-level case involving threatening communications and the First Amendment, see United States v. Alkhabaz (6th Cir. 1997).)
It would take another ten years for the U.S. Supreme Court to finally answer this question in Elonis v. United States (2015). Elonis is a notable case in that it is the first and only time thus far that the Supreme Court has evaluated the “true threats” doctrine in the internet age. Anthony Elonis was a man who posted a series of violent rap lyrics on Facebook about killing his wife and bombing a kindergarten. After he was visited by federal law enforcement, Elonis wrote more rap lyrics about killing the FBI agent who visited him: “...Took all the strength I had not to turn the bitch ghost...Pull my knife, flick my wrist, and slit her throat”. He was then arrested, charged, and convicted of multiple counts of threatening interstate communications under 18 U.S.C. §875 (c). The conviction was upheld by the Third Circuit, and Elonis appealed to the Supreme Court.
In an 8-1 ruling, the Court ruled in favour of Elonis. Chief Justice Roberts' opinion held that in order to punish an individual for a “true threat” without violating the First Amendment, the government must prove beyond a reasonable doubt that the defendant had an intention to threaten; neither negligence on the part of the defendant nor the “reasonable listener test” is sufficient to prove criminal liability. In repudiating the "reasonable listener test", Roberts wrote:
“In MINECRAFT”
A CuckTears member suggests that "the perception of the person being threatened and the courts perception of whether a reasonable person would feel threatened...that make it a threat". Another suggests that "a threat is a threat", dismissing any and all context.
Fortunately for us, the facts are not on their side. In light of the above analysis, it is clear that the "reasonable listener test" is constitutionally insufficient to override the robust protections that the First Amendment offers for free expression. Don't take my word for it. Take Justice Sotomayor's words in her concurrence in the denial of certiorari in the case of Perez v. Florida (2017):
So what does that actually mean? Am I suggesting that appending "in MINECRAFT" to a threatening statement automatically absolves one from any criminal liability?
No, I am not. What I am suggesting is that the government has the burden of proving that, in context, the speaker intended to convey a threat. The government has to prove that the speech was not uttered in jest nor is hyperbolic (refer to Watts).
There is indeed very little precedent concerning the practice of appending "in MINECRAFT" to a threatening statement. I would be very much interested in seeing such a case work its way up the judiciary.
Perhaps a jury or judge is convinced that adding "in MINECRAFT" and, say, a series of laughing emojis, to a vaguely threatening statement that is posted to an obscure online community known for shockingly depraved humor is sufficient to establish reasonable doubt with respect to the defendant's intent to issue a "true threat". Perhaps not.
In any case, what we do know is that the minds of CuckTears, once again, reveal the depths of their ignorance.
_________________________________________________________________________________________
SUMMARY (TL/DR):
CuckTears suggests that an incel can be held criminally liable and convicted for speech, under U.S. law, should a reasonable person perceive such speech to be threatening, notwithstanding the statement "in MINECRAFT".
Actual U.S. law suggests that speech adjudicated out of context, under the "reasonable listener test", or under a standard of proof requiring only negligence on the part of the speaker, would, in fact, be constitutionally insufficient and violate the First and Fourteenth Amendments.
Introduction
This essay is (sort of) a response to the following thread on Reddit. But for a while, I've also wanted to address the trend of individuals adding "in minecraft" to the end of every edgy statement, and what the First Amendment would say about it.
View: https://www.reddit.com/r/IncelTear/comments/o52gfr/thats_not_how_that_works/
View: https://www.reddit.com/r/IncelTear/comments/o52gfr/thats_not_how_that_works/h2ko000?utm_source=share&utm_medium=web2x&context=3
View: https://www.reddit.com/r/IncelTear/comments/o52gfr/thats_not_how_that_works/h2kt8au?utm_source=share&utm_medium=web2x&context=3
View: https://www.reddit.com/r/IncelTear/comments/o52gfr/thats_not_how_that_works/h2m9zjs?utm_source=share&utm_medium=web2x&context=3
What makes a threat?
One of the earlier cases addressing the “true threats” exception to the First Amendment dates back to the Vietnam era. During an anti-war rally, an 18-year-old subject to the draft proclaimed, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” For this utterance, he was arrested by the Secret Service. In Watts v. United States (1969), the Supreme Court ruled in favour of the young man and noted that facetious or hyperbolic statements, which are protected by the First Amendment, had to be distinguished from “true threats”, which are not.
What the Supreme Court failed to do in Watts, however, was fully develop and articulate a detailed test to categorize “true threats”. As such, lower courts have had to reach their own conclusions on what “true threats” are. In the intervening years some federal appeals courts and state courts have read the Watts opinion to develop the Watts factors, where the courts consider 1) the context of the statement or statements in question; 2) the reaction of the recipient or listeners; and 3) whether the threat was conditional. Some courts have developed narrower definitions of “true threats” that are more protective of the First Amendment. The U.S. Court of Appeals for the Second Circuit, for example, define a “true” threat as a threat “on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.” (See United States v. Kelner (2nd Cir. 1976)) To this day, multiple courts at the federal and state level still operate on slightly different definitions of "true threats".
As another example, one of the Supreme Court’s more recent cases considering the definition of “true threats” can be found in Virginia v. Black (2003). Black involved two white men who had set up and burned a cross on the lawn of an African-American neighbour and were consequently convicted under a Virginia statute outlawing cross-burnings. In Justice O’ Connor’s plurality opinion, the Court noted that a "true threat" is one:
The question of intent
Black, however, raised another constitutional question, one concerning due process. The Court partially struck down the Virginia statute against cross-burning because the law considered cross-burning to be prima facie evidence to intimidate. The Supreme Court reasoned that such a presumption places the burden of proof on the defendant to demonstrate that such cross-burning was not intended to intimidate, and consequently violated the Due Process Clause of the Fourteenth Amendment.
In simpler terms, here’s a new constitutional question: for the government to punish someone for issuing a “true threat”, does a) the government need to prove that the speaker intended to communicate a threat, or b) is it enough for the government to prove that a reasonable listener would have considered it a threat (“reasonable listener test”)?
Just two years after Black, U.S. Court of Appeals for the Ninth Circuit said yes to a) and no to b). In United States v. Cassel (9th Cir. 2005), Judge O’Scannlain wrote that in punishing a threatening communication, a jury instruction that fails to include “a mens rea element of subjective intent” would not comport with the First Amendment. (For another appellate-level case involving threatening communications and the First Amendment, see United States v. Alkhabaz (6th Cir. 1997).)
It would take another ten years for the U.S. Supreme Court to finally answer this question in Elonis v. United States (2015). Elonis is a notable case in that it is the first and only time thus far that the Supreme Court has evaluated the “true threats” doctrine in the internet age. Anthony Elonis was a man who posted a series of violent rap lyrics on Facebook about killing his wife and bombing a kindergarten. After he was visited by federal law enforcement, Elonis wrote more rap lyrics about killing the FBI agent who visited him: “...Took all the strength I had not to turn the bitch ghost...Pull my knife, flick my wrist, and slit her throat”. He was then arrested, charged, and convicted of multiple counts of threatening interstate communications under 18 U.S.C. §875 (c). The conviction was upheld by the Third Circuit, and Elonis appealed to the Supreme Court.
In an 8-1 ruling, the Court ruled in favour of Elonis. Chief Justice Roberts' opinion held that in order to punish an individual for a “true threat” without violating the First Amendment, the government must prove beyond a reasonable doubt that the defendant had an intention to threaten; neither negligence on the part of the defendant nor the “reasonable listener test” is sufficient to prove criminal liability. In repudiating the "reasonable listener test", Roberts wrote:
“In MINECRAFT”
A CuckTears member suggests that "the perception of the person being threatened and the courts perception of whether a reasonable person would feel threatened...that make it a threat". Another suggests that "a threat is a threat", dismissing any and all context.
Fortunately for us, the facts are not on their side. In light of the above analysis, it is clear that the "reasonable listener test" is constitutionally insufficient to override the robust protections that the First Amendment offers for free expression. Don't take my word for it. Take Justice Sotomayor's words in her concurrence in the denial of certiorari in the case of Perez v. Florida (2017):
So what does that actually mean? Am I suggesting that appending "in MINECRAFT" to a threatening statement automatically absolves one from any criminal liability?
No, I am not. What I am suggesting is that the government has the burden of proving that, in context, the speaker intended to convey a threat. The government has to prove that the speech was not uttered in jest nor is hyperbolic (refer to Watts).
There is indeed very little precedent concerning the practice of appending "in MINECRAFT" to a threatening statement. I would be very much interested in seeing such a case work its way up the judiciary.
Perhaps a jury or judge is convinced that adding "in MINECRAFT" and, say, a series of laughing emojis, to a vaguely threatening statement that is posted to an obscure online community known for shockingly depraved humor is sufficient to establish reasonable doubt with respect to the defendant's intent to issue a "true threat". Perhaps not.
In any case, what we do know is that the minds of CuckTears, once again, reveal the depths of their ignorance.
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