Justin Carter case: Should online jokes be criminal?
The internet is full
of attention-seeking trolls and snarky teenagers. Is the law current enough to
deal with their offensive comments and threats?
In February, Justin
Carter, then 18, was engaged in a Facebook dispute with someone from his online
gaming community. The gamer called Carter mentally disturbed on a public wall,
and Carter, with withering sarcasm and a teenager's poor judgment, wrote back:
I
think Ima shoot up a kindergarten
And
watch the blood of the innocent rain down
And
eat the beating heart of one of them.
Carter and his lawyer
insist the statement was a joke - albeit one in poor taste. But it's hard to
read sarcasm over the internet.
Soon a Texas law
enforcement agency received an anonymous tip from Canada. Carter's home was
searched and he was arrested. Now, he's been sitting in jail for almost five
months, unable to pay the $500,000 (£334,470) bond required for his release.
"His comment was
facetious. It was also rude and inappropriate. But they were trash
talking," says Don Flanary, a lawyer who has taken on the case pro bono.
"It's no
different than what goes on in playgrounds and basketball courts and streets
and neighbourhoods all the time."
A photo of Justin Carter tops an online
petition, started by his mother, to free him from jail before his trial
But local police say
threats like Carter's must be taken seriously after incidents like the Sandy
Hook school shooting in December, in which 26 people, including 20 school
children, were killed.
Carter was charged
with making terroristic threats. He is scheduled to appear before a judge on 16
July, when his lawyer hopes to get the bond reduced. If the case goes to trial
and he is convicted, Carter faces up to 10 years in prison.
In the meantime,
British citizen Reece Elliot has been jailed for two years and four months
after making an online "joke". Elliot filled a Facebook page created
to memorialise a Tennessee student who died in a car crash with abusive
language and threatened to open fire at a local elementary school.
His words prompted
school lockdowns and forced thousands of children to miss class.
In Newcastle Crown Court, he admitted one count of making threats to kill and eight counts of sending grossly offensive messages.
Speaking to the Daily
Mail before his sentencing, Elliot's girlfriend said his actions weren't
malicious.
"He does things
for a laugh on Facebook - that's what he does," she said.
In neither case was
the joke particularly funny.
But the jokes bring up
a debate about the limits of free speech - and whether old laws need to adapt
to a new online culture.
Elliot was charged,
for instance, under a law more than 150 years
old. It states: "A person who without lawful excuse makes
to another a threat, intending that that other would fear it would be carried
out, to kill that other or a third person shall be guilty of an offence and
liable on conviction on indictment to imprisonment for a term not exceeding ten
years."
The law is similar in
Carter's case - a threat is legitimate if the accused shows intent to do harm
and the accuser has reasonable grounds to fear harm.
Elliot's specificity
and the absence of any reason for people to believe he was jesting left good
reason to fear he might carry out his threat. For instance, he singled out one
girl for abuse after she asked him to stop commenting.
In Carter's case, his
lawyer says once the facts are heard in court, his true intent will be clear.
"He didn't
threaten anyone," Flanary says. "He didn't call this in to a school,
a police station or a newspaper. He's saying it privately to a person
online."
Still, his
"private" statement was visible to others. As with much online
communication, his words were on display to a much larger group of people than
that which might hear similar threats on the playgrounds and basketball courts.
The medium, a 21st
Century technology, also makes intent harder to discern. Does speech on social
networks require new laws?
"Surely the laws,
when drafted, didn't consider the type of speech we now see on the internet,
and the effect of technology," says Robert Weisberg, a professor of
criminal law at Stanford University.
Elliot, posting under a false name, made
threats online
"But I don't
think we could write a better law."
The laws as written
clearly define what is a threat and what is not - and making exceptions for
online behaviour would only muddy those definitions, he says.
"There's no such
thing as technological exceptionalism," says Gabe Rottman, legislative
council with the American Civil Liberties Union in Washington DC.
"The same
principles that have always applied to speech over the phone and in one-on-one
emails should also apply to social media."
Instead, it should
fall on police officers and prosecutors to be more judicious about how the
current laws are applied, he says.
"When you are
talking about social media, where people tend to be - and should be - loose in
what they say, it's important for law enforcement to look at whether this is a
viable threat," says Rottman.
At the same time, a
combination of high-profile prosecutions and general public frustration with
crude, unfunny "jokes" could lead to an overall cooling of such
speech online, without new restrictions.
"People are more
careful about what they say in airports now than they used to be," says Weisberg.
"Consciously or subconsciously, they have absorbed the idea that you don't
joke around."
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