Brewington, True Threats Not Free Speech

[Kirk Freeman]

Today the Indiana Supreme Court issued its decision in Brewington v. State of Indiana. This is the blogger that was prosecuted for crimes, including Intimidation, for his alleged threats against a judge and a doctor.

The Indiana Supreme Court holds, among other points, that true threats are not free speech and can be prosecuted.

http://www.in.gov/judiciary/opinions/pdf/05011401LHR.pdf

 

[Jack Burton]

Here's the Volokh interpretation of the case. The Good Professor was involved in submitting amici

 

[IndyDave1776]

It seems that the court has rightly ruled that genuine threats and libel are indeed punishable, but this does not outlaw saying things someone doesn't like, even dripping in venom, if it does not constitute a criminal threat or libel. Hard to ask for a better decision.

 

[cosermann]

How would you describe what constitutes a "true threat" to a layman? (in a nutshell)

 

[IndyDave1776]

How would you describe what constitutes a "true threat" to a layman? (in a nutshell)

A threat in this context would be a declaration of intent to cause harm in a way which would be illegal if actually done. Declaring intent to beat, maim, kill, burn down his house, rape his dog, kick his wife would fall under the umbrella. Declaring intent to express unflattering opinions (provided that they do not cross the divide into libel/slander) does not constitute a threat in the legal sense. Declaring intent to clobber him competitively in business does not qualify. Declaring intent to put up as much money as it takes to torpedo his next political campaign does not qualify.

 

[CathyInBlue]

…, burn down his house, rape his dog, kick his wife,…

You are a sick, sick man!

Remember, the order is rape, pillage, then burn.

 

[IndyDave1776]

You are a sick, sick man!

Remember, the order is rape, pillage, then burn.

I suppose I just set myself out for not being a professional marauder.

 

[Destro]

How would you describe what constitutes a "true threat" to a layman? (in a nutshell)

motive and means...if I say im going to drop a bomb on your house...not really a threat; if I say im going to drive to your house at 123 Anystreet and beat you and your wife up with a tire iron because of XYZ reason, that is more of a true threat

 

[BehindBlueI's]

What part of "make no law...abridging the freedom of speech" do they not understand? We're all serfs under the heel of these Constitution shredding activist judges. What's next, I can't talk about puppies in public in case someone has an allergy to dogs?

 

[Kirk Freeman]

What part of "make no law...abridging the freedom of speech" do they not understand? We're all serfs under the heel of these Constitution shredding activist judges. What's next, I can't talk about puppies in public in case someone has an allergy to dogs?​

I hereby declare BBIs as the only True Guardian of Liberty that INGO has.

 

[88GT]

I'll take that bait: I don't see how a threat harms another man. Slander/libel are a different story. Those words have real consequences. But someone saying he's going to do X is just saying something. Why is that a crime?

 

[IndyDave1776]

I'll take that bait: I don't see how a threat harms another man. Slander/libel are a different story. Those words have real consequences. But someone saying he's going to do X is just saying something. Why is that a crime?

At one level, it is a tool of intimidation which does in fact harm another individual. This comes with the caveat that leaving a person in fear for his life or other real and substantial harm is different from simply annoying the person.

 

[Light]

At one level, it is a tool of intimidation which does in fact harm another individual. This comes with the caveat that leaving a person in fear for his life or other real and substantial harm is different from simply annoying the person.

I would take that as a very good definition between a threat or not, but on the other hand I could see some people who would take a lot of things as threatening by that definition that the rest of us would laugh at.

 

[IndyDave1776]

I would take that as a very good definition between a threat or not, but on the other hand I could see some people who would take a lot of things as threatening by that definition that the rest of us would laugh at.

Oh, I agree with you completely. Looking mean in public. Possession of a 'scary' gun. This is why I had previously stresses the inclusion of a declaration of intent to cause harm. In this case I was merely addressing the issue of why threats should be illegal.

 

[88GT]

At one level, it is a tool of intimidation which does in fact harm another individual. This comes with the caveat that leaving a person in fear for his life or other real and substantial harm is different from simply annoying the person.

I see your point but I disagree. Words without action. Without some sort of action to back up the threat, how can it be claimed that the words are sufficient to cause fear? There has to be more. A reason to believe the threats are serious.

 

[GodFearinGunTotin]

Tagging for later.

 

[96firephoenix]

Indiana Code 35-45-2

I think we just saw this statute common-law applied to the interwebs.

edit: and on page 7 of this good justice's brief, we see that code cited.

 

[IndyDave1776]

I see your point but I disagree. Words without action. Without some sort of action to back up the threat, how can it be claimed that the words are sufficient to cause fear? There has to be more. A reason to believe the threats are serious.

Sorry for the ambiguity. I took it for granted that we were talking about credible threats so I skipped over that part.

I would start here...

motive and means...if I say im going to drop a bomb on your house...not really a threat; if I say im going to drive to your house at 123 Anystreet and beat you and your wife up with a tire iron because of XYZ reason, that is more of a true threat

...and flesh it out by accounting that from the context of the situation it can be construed whether a person is merely sounding off, is really in the frame of mind to make good on it, and has or has not the means to carry out the threat.

I will offer the following outline of establishing a credible threat:

1. The person must declare the intent to cause harm in a way that is illegal to carry out.
2. The person must have the means available to carry out the threat.
3. The person must have a motive for carrying out the threat which is durable enough to outlive a moment of
elevated emotions. A threat issued over a slight insult is a lot different than one derived from finding out
someone is having an affair with his wife.

I share your concern on the matter, particularly the issue of no actual harm having been done but at the same time see this as having much in common with laws regarding conspiracy. A crime has not been committed in the past tense, but then again, should people walk because they are stopped by law enforcement before actually committing a crime but after they are already in the process of planning and preliminary acts preparing for it? At this level, a credible threat is a confession that you are going to commit a crime as soon as you have the opportunity.

 

[88GT]

I still don't see a difference. Specificity doesn't make the threat any more credible. Words can't do that. Has to be something more. People can say a lot of stupid stuff in rage.

 

[Jack Burton]

I still don't see a difference. Specificity doesn't make the threat any more credible. Words can't do that. Has to be something more. People can say a lot of stupid stuff in rage.

it is an evolving area of law...

and here