| | Bill writes, Well, in this case there was a perceived threat, so much so that the little girl was removed from school. Moreover, you wrote in post 47, "Remember, people are criminally liable for their actions, not their words." This is a false dichotomy. Speech is an action. If a mugger says, "Your money or your life," he's done nothing more than make a statement, yet that statement, by its very nature, is coercive.... My only response to this is: Oh Bill!! Ok, I have more of a response, but that is my initial reaction. Bill, coercive action means physical coercion, helllllllooooooooo? This is the very foundation of objective law, defining what is and is NOT physically coercive action. We are not talking about mental actions or their expression in speech, we are talking about physical action. Do you mean to tell me you lump these all under the broad category of "action" with all being potentially cause for criminal liability? Yikes!!!! You just turned objective law on its head by categorizing them this way.
Bill, do you not see the difference between advocating rape, and the physical act of rape itself? Yes, I see the difference. That's not what we're talking about here; we're talking about specific threats of bodily harm. I thought I made that clear in my last post. What makes the threat above criminally liable is that it is backed up with the use of physical force. It is statements coupled with the threat of physical force. Does physical force have to be used? You say, "backed up with the use of physical force." Or is it enough merely to threaten its use? Your statements here are ambiguous, Michael. I'd say that it's enough merely to threaten its use, if there's a reasonable chance that the threat could be actualized. The Supreme Court recognizes this as criminal, but speech in and of itself is not. Read Justice Douglas's concurring opinion in the Brandenburg case I cited. My arguments or the arguments of the illustrious men in black robes don't suffice for you? How about Ayn Rand, will that do? Michael, you should know by now that I don't accept arguments from authority, neither from the Supreme Court, whose rulings are far from consistent with individual rights, nor from Ayn Rand, whom I don't always agree with. But let's consider the statement from Rand that you quoted: "The difference between an exchange of ideas and an exchange of blows is self-evident. The line of demarcation between freedom of speech and freedom of action is established by the ban on the initiation of physical force. ('The Cashing-in: The Student "Rebellion"')." Observe that Rand is talking about "an exchange of ideas," not a verbal threat to do bodily harm! So why would you think that her statement applied to what we are talking about here?
You can quote Ayn Rand all you want, but her statements need to be interpreted within their appropriate context, as do mine. Do you really think that she would disagree with the point I am making? I have no doubt that she would be the first to say that speech is an action and that it can violate rights, if the speech is sufficiently threatening.
To give a rather obvious example, suppose that after I board a plane, I say that I have a time-bomb in my luggage that's set to go off in five minutes and will blow the plane to smithereens, but I'm just being perverse and have no bomb at all in my luggage. Should I be arrested and charged with a crime? All I did was make a statement that was not, as it turned out, backed by any actual intent to use force or even any implement of physical force, since there was no bomb in the luggage. Yet, the obvious effect of my action is for the the authorities to evacuate the plane and make an effort to find the luggage and defuse the bomb.
Or suppose I stick a gun in your back with no bullet in the chamber, and tell you that if you don't surrender you're money, I'll shoot you. Of course, I have no intention of shooting you, and couldn't if I wanted to, because the gun isn't loaded. Yet, in response to my threat, you give me your money, because you don't want to take the chance that I won't do what I say. Should I be arrested and charged with a crime?
In both these cases, it should be obvious that I do indeed deserve to be arrested and charged with a crime. Yet all I did was threaten the use of force with no intention or ability to carry it out - with no actual physical force backing up the threat.
Again, you quote Ayn Rand, as if her statement had any relevance to the point under discussion: "When you lose the distinction between action and speech, you lose, eventually, the freedom of both." ("The Objectivist Calendar"). What is the "The Objectivist Calendar"? I'm familiar with all of the Objectivist publications, but never heard of any publication called "The Objectivist Calendar." There was a section of The Ayn Rand Letter called "The Objectivist Calendar" which listed upcoming events that were taking place around the time these "Letters" were published back in the early '70's, but that's all I'm aware of. Furthermore, if you quote Rand, please indicate the page numbers of the publication, so I can check the source. As it is, I have no idea where she made the above statement or any understanding of its context, unless she means basically the same thing as the previous quote, in which case, I would have the same response. Bill, you just trampled underfoot the very foundation of criminal law, which is an actus reus--a voluntary action. Which means what? - that the right to voluntary action includes the right to threaten bodily harm? I was not being disingenuous Bill, I am quite sure you are for free speech. My point is that you are working off of erroneous or unclear or undefined legal principles that in fact undercut free speech. It would be like saying I am for free trade, without grasping the law of supply and demand.
The main problem is that you are taking a concrete circumstance (in Mr. Torain's case here) and using that to graft broad legal principles No, I'm not! Where did you get that idea? This is the concrete-bound approach to law, and it is dangerous. You are moving from principles to concretes. Remember that legal principles have to objectively define broad ranges of action that constitute physical coercion and do not contradict the underlying fundamental rights. Thomas Jefferson was accused of subversive political statements, I don't remember specific calls to violent action on his part, but say he had. Are you going to be so willing to suppress his calls to violent action, Bill? No, because they wouldn't be communicating any actual intent of his to commit a violent act. You did bring up one of Robert's arguments that I forgot to mention, which is very seductive and seemed to attract a number of people earlier in the thread: "Physical intimidation and threats of violence can cause innocent people tremendous damage and harm, as they must rearrange their lives to accommodate the possibility of attack." The problem with this is that you don't evaluate what constitutes physical coercion by the reactions of other people or possible indirect harm. Of course, the reactions have to be reasonable under the circumstances. If the flight crew evacuates the plane in response to a bomb threat, they are taking reasonable action under the circumstances, and accordingly, the threat qualifies as coercive insofar as it forced the airline into taking this action. The same with the gunman who has no bullet in the chamber. It is reasonable for me to give him my money, even though he would not have harmed me had I refused. So, his action still qualifies as coercive. He can still be charged with robbery. The parents were well within their rights to take actions to protect the children, but does that necessarily mean the alleged criminal's actions were the equivalent of force? No. The criminal's actions have to be evaluated with objective standards. I agree that they have to be evaluated with objective standards, but the parents were not only within their rights to protect their daughter; their action was reasonable under the circumstances, which means that Torain's threat qualifies as coercive, even if he didn't intend to harm her. After all, a hypersensitive person may overreact to what is indeed no threat at all, does that mean the other person actually caused a threat? No, but that's not the case here. What about people who live around convicted felons and live in fear of action against them and take measures to protect themselves? If no coercive action is taken by the felon, then there is no criminal liability, even if people have to "rearrange" their lives in certain respects. But here the ex-cons haven't made any actual threats of bodily harm, so there can be no grounds on which to arrest them; it has to be a specific threat that someone makes against another person. But if the threat of bodily harm is one to which it is reasonable for people to react by altering their behavior, e.g., the evacuation of the plane in response to a bomb threat, or the surrender of one's money to a robber with an unloaded gun, then the action constitutes a crime. As to the "likelihood" element of advocating illegal activity, of course it is restrictive, that's the point!! Bill, do you want government running around arresting people for statements based on caprice or subjective judgments about what constitutes force? Its meant to be restrictive in order to protect speech. I'd like to revisit this "likelihood" criterion, because I see another problem with it. To say that an action is "likely" is to say that the probability of its occurrence is greater than 50%, right? So, an action whose probability is only 50% does not qualify as likely. Would you want to allow someone the opportunity to carry out a threat if his chances of doing so were one out of two? I wouldn't. If there was a one in two chance that someone who threatened to blow up a plane would actually blow it up, I'd want that person arrested. Wouldn't you? Even if the chances were one in three that he would carry it out, I'd want him arrested. So this idea that the chance of the person carrying out the threat has to be better than 50% is too restrictive. It gives the perpetrator far too much latitude. But if so, then what standard should be applied here? I'd say it has to be virtually certain that the person making the threat is doing so in jest or is not serious about it. If there's any reasonable chance whatsoever that he's willing to carry it out, then I think he should be arrested and charged with a crime.
- Bill
(Edited by William Dwyer
on 5/19, 3:08pm)
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