Thanks! You may also like this comment where I talk more about the issue of defining true threats.
One thing in the comment to which you responded I believe is unclear.
"True threats" are not constitutionally protected. They never have been, never will be. "I can say whatever I want" ends when a reasonable person hearing what you say becomes afraid for their safety.
I'm mixing a general principle ("in society we don't want people to be able to make people legitimately fear for their lives") with a specific legal term "true threat," and it may seem like I was defining it, and I didn't mean to.
And I didn't quite get into it specifically in the post I just linked. But a "true threat" is not clearly defined and can mean slightly different things in different jurisdictions. But one thing it is definitely NOT is what I said about "the reasonable person hearing what you say." That makes it sound like a subjective test, that it matters what the person who was "threatened" thinks. In fact it's an objective test. A "true threat" does not have a consistent definition, but is likely one that an objectively reasonable person would believe is a serious expression of intent to do harm.
It has to be that way because otherwise the standard of behavior would be whatever the most sensitive people in society find threatening. Plus it would make for a screwy dynamic between the threatened and the threatening, essentially putting the power of prosecution in the hands of the victim rather than the state.
For instance, in the whole "GamerGate" fiasco, Brianna Wu says she was "driven from her home" by death threats on twitter. Should the asshole who sent her those ever be caught, I would hope his prosecution (if any) would be based on what a reasonable person would do in response to an anonymous threat on twitter, and not on what Wu would or did do.
Still, the whole case is interesting because people who don't read the articles seem to think they ruled on whether or not rap lyrics posted to FaceBook are threatening or not, and think that by overturning his conviction they've affirmed that they are not, and "ruled in favor of free speech." But they didn't. They barely touched on it, basically agreeing that what he did cannot be definitively said to be protected speech. It's kind of odd, I think they're tying the objective test for "true threat" with the mens rea of the threatener, and I don't think they should be.
Elonis thinks his intent should matter, and since he intended no harm, he made no threat. But how can the "reasonable objective observer" be expected to determine his true intent from his apparent intent? If the test is "would a reasonable person believe this is a serious expression of intent to do harm" then his actual intent doesn't matter. But (ignoring the travesty of criminal violation of strict liability regulations) we generally don't punish those who make innocent mistakes. So mens rea should always be important. But why make the objective reasonable observer determine the mens rea component of the crime? A convincing, but accidental death threat is still a threat, should not be a crime.
For instance, what if Elonis had, instead of posting words about murdering his ex-wife on FaceBook, had emailed them directly to her? How could an objectively reasonable person not think a graphic description of their death at the hands of a furious ex-spouse delivered directly to them constitutes a true threat?
But what if it were sent on accident? Pulled up the email client, poured his bile into it, but then instead of clicking "delete" he accidentally clicked "send" instead? I think that's even a piece of advice I've seen from therapists (or random people on the internet). When you're mad at somebody, write them a nasty letter and then tear it up. Should he be punished criminally for that? While yes, it's definitely a threat any reasonable person would take seriously, it was not communicated with intent to terrorize. So no mens rea, no crime?
Obviously it would be up to the jury to determine if the sender did so "accidentally" or not.
So, a jury could be asked two questions: 1) Is this a communication a reasonable person would think was a serious threat to do harm in this context, and 2) what was the state of mind of the speaker? Did they intend to threaten? Threaten recklessly? Negligently? Accidentally?
Would that be reasonable?
In this case I would think 1) a reasonable person would take these as true threats. I probably would. Lots of people who knew him did. At the least I would find it impossible to say "a reasonable person couldn't take this seriously." And then 2) I would say he communicated somewhere between negligently and recklessly. He clearly knew people were taking his words seriously and continued making them. But, he also made posts explicitly stating that he was not serious. He seemed to think that was good enough. That shows that while he knew his actions were being taken seriously, he cared, and took steps to mitigate damage. If he hadn't, that would have been reckless (knew people were being terrorized and didn't care). If he honestly believed that would assuage people's fears, then he's an idiot, but that's not a crime, and his actions were merely negligent, because a reasonable person should know that's not good enough.
And I don't think such a standard would change much, but would add clarity. It would still be illegal to make jokes about bombs at an airport because it would be a threat a reasonable security agent MUST take seriously, and ANY traveler knows this, and instructions about not saying such things are clearly posted. So "I was joking!" doesn't fly in that case. You knew what the response would be, and did it anyway, so your actions were intentional.