| | John,
You say that nobody was questioning whether anybody was disputing distinctions between idle threats and real threats? Perhaps you missed Robert's post (#17):
After all, who can tell which coercive statements are "idle threats" or serious ones? Who can tell? Robert, via his last post, obviously can tell. That was a neat little trick, too, by going from this statement to then backing away in his last post and applying the "reasonable person" standard to see if a threat is "idle" or serious". Will Robert admit this is wrong and instead say he meant to apply the reasonable person standard? I doubt it. I am sure I will be accused of taking this "out of context" instead evaluating Robert's words as meaning what they mean.
Maybe he can in BIG, BOLD letters tell us once again that a "real" threat of violence is not protected by the 1st Amendment. Well, duh? I stated that exact thing in my last post and have stated all along that "real threats are a problem" and that the Supreme Court "treats them as criminal". Then you guys make the Great Leapt saying X is a real threat and therefore is not protected. Yes, IF it is a real threat!! The question is: what standards do you use to determine if statement X as a real threat? What makes it illegal and how do you know it? Is the surrounding context sufficient to make it fall under protected speech? This is conveniently skipped over and all threats are treated as if they are created equal and backed up with concretes that prove their own point. Stunning legal analysis.
But I am in a generous mood today, John, and I'll take Robert at his subsequent word that he wants to use the "reasonable person" standard for evaluating a threat. But that's it? A reasonable person standard? No mens rea attached to this? That is going to make a HUGE DIFFERENCE in how the action is evaluated and the OUTCOME of the case. John, you make an attempt at this:
Harrassment alone is an initiation of force as it was foreseeable the child could be harassed or otherwise harmed directly as a cause of Torain's on-air statements. Reasonable forseeability of the harm? Reasonably forseeability of the harm is a standard applied where the mens rea is negligence, such as involuntary manslaughter. Is that what we are dealing with? Crimes of rape and murder (and the attempt of them) have a mens rea of purpose, of conscious intention. If you answer only one question, John, answer this one: in evaluating a threat of rape, why the hell would you apply a test of negligence for a crime that requires purpose? Its like saying all you have to do to prove you know calculus is to pass a test for algebra. If you are using a "reasonable person" standard, wouldn't the proper method of evaluation be whether a reasonable person would interpret the defendant's statement as a serious intention to inflict bodily harm?
I found the case I mentioned earlier on the threat against LBJ (Watts v. US), here is what the defendant said:
"If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." This is more explicit than the examples Robert gave, but why did the Court strike it down? Where the statute requires purpose ("knowing and willing intention to inflict death or bodily harm on the President") they applied the standard where a reasonable person would construe this as an intent to inflict bodily harm. Here, even though it was directed at the specific person in the President, in light of the fact it was a political rally and the people laughed at the comment, the Court did not consider it "serious intention". They dismissed it as "political hyperbole", i.e. as following under protected speech.
IF the standard had been would a reasonable person forsee this to be interpreted by the perceiver as intention to inflict harm, then the outcome would probably completely different. In fact, this threat did take cause the state to take protective measures to secure the life of the President, yet they struck it down.
And do either you or Robert take into account different types of threats of violence, like in Brandenburg where the death threats were directed generally? Or in your standards of evaluation, do you take into account mitigating circumstances like the case above that involves "political hyperbole"? What about the proper mens rea?
No, you guys take none of this into account. Instead, you look at Mr. Torain's case and supply a couple of hypothetical concretes, and draft a law around it stating all threats of violence are not protected speech. Unbelievable. It would be rather pointless to argue if there is a better standard than the "reasonable person" because that doesn't seemed to be grasped too well to begin with.
I don't what a "tyraid" is, John, but a tirade it is not. It is annoyance--annoyance at the fact that there is no regard for basic legal principles, no regard for a wider category of threats, no regard for circumstances that would put it under protected speech, and on and on. I would expect it from Bill, who wants to obliterate the line between speech and action. I think Little Johnny on the playground can tell the difference between saying "I want to kick Little Susie in the stomach" and actually going over and kicking Little Susie in the stomach. A statement maybe back up by physical force, a statement may exhibit an intent to committ physical coercion, but physical coercion itself it is not.
I did expect greater scrutiny from Robert. He edited and wrote articles for a book on criminal justice, which was quite good. He should be able to bring a greater level of legal scrutiny and make those kind of distinctions as above. Ironically, it was I who defended his ideas punishment on the Crime and Punishment thread against Bill's sophistry. Oh well.
Michael
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