April 22, 2023

"What speech, she said, comes close to being a 'true threat' but is so 'supervaluable' that we need to be worried about it?"

"She" = Justice Kagan, described in "Justices hear 'true threat' protected speech case" (SCOTUSblog). 
At the end of nearly two hours of debate, the justices generally appeared skeptical of Colorado’s contention that courts should use an objective test, that looks at whether a reasonable person would regard the statement as a threat of violence.... 
Chief Justice John Roberts... cited one of the statements for which Counterman was convicted, in which he told Whalen that “staying in cyberlife is going to kill you. Come out for coffee.”....
Justice Amy Coney Barrett... asked “[Who] is the reasonable person?” She outlined a hypothetical involving a college classroom in which a professor, for “purely educational” reasons, “puts up a picture of a burning cross and reads aloud some threats of lynching that were made at the time.” “Maybe it’s the case,” Barrett suggested, “that nowadays people would be more sensitive to that and … a reasonable Black college student sitting in that classroom would interpret that as threats … that might materialize into actual physical harm.”

22 comments:

Kevin said...

Maybe it’s the case,” Barrett suggested, “that nowadays people would be more sensitive to that and … a reasonable Black college student sitting in that classroom would interpret that as threats … that might materialize into actual physical harm.”

More sensitive today than when actual lynchings were being performed and people truly needed to fear for their safety?

Is that a “reasonable” college student today?

Owen said...

I think we need a Snowflake Standard to test the criminality of our statements. Under this standard, anything we say —or fail to say— can and will be used against us if anyone anywhere declares that it might make them feel uncomfortable. First offense? Five years’ probation and no more Internet. Second offense? Chain gang for life.

rrsafety said...

Barrett is correct, if the average “reasonable person’s” tolerance for discomfort is lowered, does that mean I should lose my right to speech?

Temujin said...

It's hard to believe that humans made it this far, sorting out the gene pools, self-destroying entire cultures, eliminating humans by the millions over millennia, and finally coming out on this end in 2023, only to find that after all the centuries, all the fighting and struggling, we are doubled over by words that some find 'triggering'.

Please. Just move on.

Tommy Duncan said...

When you destroy all cultural norms the question "who is the reasonable person?" has no answer.

When we accept statements like "silence is violence" all speech becomes potentially threatening.

There are consequences to the left's attacks on our language and on our sense of what is reasonable. Traditions, norms and taboos have existed for a purpose.

cassandra lite said...

Well of course the reasonable-person standard is also now RIP in this brave new world of bizarro in which JK Rowling would be burned at the stake for believing people with dicks aren't female.

baghdadbob said...

How about this one:

"I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

--- Chuck Schumer

n.n said...

Ethical statements of Choice are a threat of lethal, unusual, and cruel punishment in clinics, nationwide insurrections, municipal occupations, fascist mobbing, empathetic bullshit, etc.

NKP said...

Reading the SCOTUS Blog piece, the question I have is: What, specifically, was written or said that was deemed a criminal offense?

File under "Eff the facts. Let's argue the law."

Yancey Ward said...

“staying in cyberlife is going to kill you. Come out for coffee.” “In what way is that threatening,” Roberts asked, “regardless of the tone? What tone would you use that would make it threatening?”

Weiser responded that the statement was threatening when put into context."


That is a problem with the conviction. Context is a second and third party construction. It can't know the intent of the convicted party, it can only infer. Is this a question for the jury, and should it be? I think, to be safe and constitutional, the threat needs to be specific, and not open to interpretation- once you have to try to figure out the intent to figure out the context, you are in the realm of making up what you want to believe is the truth, not know. To do otherwise is just too much power granted to the government, which will use it to send you to prison for threatening torch carrying.

Smilin' Jack said...

“...whether a reasonable person would regard the statement as a threat of violence....“

Welcome to 21st century America, where anything you say can and will be used against you. And, since “silence is violence”, so will anything you don’t say. Winston Smith had it easy.

hombre said...

Tommy at 8:06: "When you destroy all cultural norms the question "who is the reasonable person?" has no answer."

Maybe that's it! I don't want to, but I see that now. Thanks.

MikeD said...

Well, SCOTUS was so triggered by loss of Twitter "blue check", they took their feelz & left.

Narayanan said...

who is the reasonable person
==========
reason+able >>> able to reason : how does one demonstrate this ability?

hombre said...

Tommy at 8:06: "When you destroy all cultural norms the question "who is the reasonable person?" has no answer."

Maybe that's it! I don't want to, but I see that now. Thanks.

loudogblog said...

I think that people are confusing "typical person" with "reasonable person."

A typical person of a certain group might see something as a threat when a reasonable person of that group would not.

Rabel said...

Why is Justice Jackson's chair vacant in the illustration?

Readering said...

My impression was that the criticism of the reasonable person test was that it excluded evidence of the defendant's subjective state of mind. The fact finder did not hear evidence that the defendant was delusional, only about how his words over time terrified the victim and turned her from a professional musical performer into a recluse.

Richard said...

In barrett's hypo, the reasonable Black student would fall on the floor in a pile of angsty glop. The prof would be fired and the student given a tenured position. Meantime, several other administrators would also be fired.
And the reasonable student knows this and is alert for the opportunity.

gilbar said...

Kevin said...
More sensitive today than when actual lynchings were being performed and people truly needed to fear for their safety?

i've read Numerous times, where the writer stated that:
21st century america is THE WORST TIME AND PLACE to be black.. EVER
[and, NO i can't find Any.. Even though i just looked For TWO minutes; so i'll have to just give you this]
Report: Now Sadly The Best Time In American History To Be Black

Narayanan said...

I think that people are confusing "typical person" with "reasonable person."

=============
does it also have to pass DEI ?

Joe Bar said...

The federal government does not want a "subjective standard" applied to speech. That way, they can still imprison people for tweeting about texting to vote for Hillary Clinton.