Kevin Reed, a magistrate judge in Memphis, is one of the people who sees the ugly reality of domestic violence all the time. He has this op-ed in the WaPo, commenting on Elonis v. United States, the Facebook threat case.
As a magistrate judge, I've presided over hundreds of protective order hearings in domestic abuse cases. And I can tell you that no abuser intends to truly threaten when he promises to kill his victim -- at least not by the time he's made it to court.
Victims come to court every day armed with heinous voice-mail messages, text messages or Facebook posts from abusers threatening them with bodily harm or worse. The identity of the speakers of these troubling statements is rarely in question. But when confronted, these abusers are always dismissive. According to them, such statements aren't real threats at all. They are just a way to express anger about a particular situation -- loose talk designed to let the target know how upset they feel. An overt statement to kill someone on sight is explained away as an atypical outburst that meant nothing -- a position they believe is supported by the living-and-breathing victim's presence in the courtroom.
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But there is an even more compelling reason not to require subjective intent in threat cases: Victims must protect themselves regardless of intent. For example, in domestic abuse cases where there has been physical violence in the relationship, victims have no way of knowing whether statements to inflict harm are real or just transitory anger. They must consider their safety even if the abuser is just blowing off steam. For them, every threat is a true threat.
Domestic abusers routinely use threats to exert power and control over victims. Abusers are keenly aware that victims never really know if their threats are serious or not. Ultimately, their objective is to keep victims guessing about whether they are in real danger. The Supreme Court should refuse to protect this manipulative behavior.
Some links for this case:
CJLF's Brief.
My post, the day we filed the brief, with fairly long description of the case and issues.
Transcript of the oral argument, December 1.
Bill's day-of-argument post, and mine later that day.
My post-argument podcast for the Federalist Society
My podcast with John Eastman of the Claremont Institute
Agreed. The issue isn't, in my mind, giving protection to manipulative behavior of domestic abusers, but ensuring that "threats" protected by the First Amendment remain protected. As reprehensible as "put wings on pigs" in the absence of a specific target, it's constitutionally protected speech, as is a Texas teen's statement that he felt like blowing something up. (That Texas teen was jailed for months over that, and to the everlasting disgrace of the prosecutors, they have refused to drop the charges.) The true threat requirement protects political speech like Tom Coburn's, as well as a particularly obnoxious comment of a Florida cop who remarked after a tragic police shooting of an innocent man: "You pull a gun on one of us, you're gonna get shot." Yeah, Mr. Policeman--problem is that when you kick in doors in the middle of the night without announcing presence, you can kill a person who is simply defending his family. The First Amendment also seems to protect threatened prosecutions--like the St. Louis County prosecutor's threat to bring criminal libel charges against those who "lied" about Barack Obama.
Given the threats against free speech in America, I am hopeful that this case, in rejecting the defendant's argument, does not inadvertently give succor to those who would censor.
In my view, genuinely protected speech is in little danger here. No one is suggesting overruling Watts or Black.
These threats were directed to a specific person under circumstances making it likely they would be relayed to her, and both on their face and in context would be taken seriously by a reasonable person, not just an unduly sensitive one.
Nobody seeking to express any legitimate thought or feeling needs to say, "I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave." He can express anger and frustration another way.
Understood. I don't see this guy winning, but I thought the same way about the MOH liar too, although I can understand the decision.