Are General Threats of Violence Against Groups Punishable?

Publication Type: 
Other Writing
Publication Date: 
June 19, 2014

Cross-posted from Forbes.

Under the name “Foss Dark,” University of Washington student Keshav Bhide wrote online:

Everything Elliot did is perfectly justified.

I live in Seattle and go to UW, that’s all (I’ll) give you. (I’ll) make sure I kill only women, and many more than what Elliot accomplished.

Has he committed criminal cyberstalking or felony harassment as he’s been arrested for? Would the First Amendment countenance the charges under the true threats doctrine?

My tentative answer to both questions is probably not.

Let’s first tackle the Washington cyberstalking law. Under Washington law, “a person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:

(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

(b) Anonymously or repeatedly whether or not conversation occurs; or

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.

Like many state cyber stalking statutes, the Washington law only applies to electronic communications sent directly to the victim or a third party. It seemingly does not apply to YouTube videos and message board posts. We saw charges struck down in the New York case against Ian Barber for much the same reason.

What about the harassment statute? I’m assuming Bhide has been arrested under Washington’s malicious harassment, which seems most applicable. Under that law, a person is “guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental or physical, or sensory handicap, including threats to a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property.” Bhide did threaten a group of persons due to their gender and women could be put in reasonable fear of harm to their person. Bhide put up his posts just following a university shooting in Seattle in which two students were killed; his posts clearly state that he goes to UW and lives in Seattle. The question is whether his threatening all women–”I will make sure I kill only women”–constitutes a group of persons under the statute. The question is whether the statute is meant to cover general threats of violence as to groups rather than specific groups of individuals (say, the women of a specific named sorority). Courts upholding threat and cyberstalking convictions have involved threats as to a group. Cases involved threats such as “a dead Arab is a good Arab” in the Syring case or “all Latinos will die” or in the Vincent Johnson prosecution. But, in those cases, the threats were made to specific individuals working for specific civil rights groups. For instance, in the Syring case, the defendant sent threatening emails and made phone calls to individuals working for an Arab-American organization. Similarly, in the Johnson case, the defendant sent threatening, anonymous emails to individuals working for a Hispanic civil rights organization. I’m having a hard time seeing the threat charges stick to a general threat to kill all women in Seattle under the statutory language. It will be interesting to see others thoughts on the issue.

What about the First Amendment analysis? As Forbes writer Kashmir Hill insightfully discussed this week, the Supreme Court just agreed to hear a case about whether the First Amendment requires proof that the defendant subjectively meant to threaten, that is, to put someone in fear of physical harm, or if it is sufficient that a reasonable person would understand the threat as a credible, true threat.

Just to step back a bit, certain categories of low-value speech can be regulated due to their propensity to bring about serious harms and slight contribution to free speech values. They include true threats—speech intended to convey a serious intent to hurt another person (the subjective test in the Ninth Circuit) or that a reasonable person would interpret as expressing a serious intent to cause bodily harm (the objective test in many other courts of appeal). The First Amendment does not protect true threats because of their minimal contribution to public debate and their infliction of serious harm. True threats generate profound fear of physical harm that disrupts victims’ daily lives. When faced with credible threats, victims change their routines for their own physical safety. In this way, credible threats are tantamount to coercion. As Professor Kenneth Karst explains, legal limits on someone’s liberty to threaten another person ultimately defend the victim’s liberty.

In Virginia v. Black, the Court held that cross burning is a constitutionally unprotected “virulent form of intimidation” if it is targeted at particular individuals and done with intent to instill fear of physical harm. The Court underscored that speakers need not intend to carry out the threat because the true threats exception protects individuals from the fear of violence, the disruption that such fear engenders, and the possibility that violence will occur. The Court contrasted cross burning done to convey a hateful ideology at a Klan rally, where specific individuals are not targeted. In that context, cross burning constitutes protected expression. As the Court emphasized, individuals have the right to express hateful views but not to make true threats.

The take-away from Virginia v. Black and from cases like the Nuremberg Files may be that true threats have to concern specific individuals in groups, not just groups generally. There is certainly an argument that in this context, the threats to all women in Seattle may engender the sort of  fear and disruption that proscribable threats do: days before the defendant posted the threats, there was a school shooting in Seattle, and the defendant specifically invoked Elliot Roger and his killing of university students as his inspiration. To me, it seems the weaker argument under First Amendment given that we consider true threats in light of the principle that debate on public issues must be robust and that chilling concerns are real when it comes to hate speech (which we protect no matter how offensive). We shall see.