Terrorist…ic…al…ish? Threat

 Posted on August 01,2013 in Uncategorized

So what about the charge for which DPS issued subpoenas to Twitter? ((It appears that DPS has withdrawn one of the subpoenas by agreement (PDF).))

§ 22.07. TERRORISTIC THREAT. (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:(1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies;(2) place any person in fear of imminent serious bodily injury;(3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place;(4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service;(5) place the public or a substantial group of the public in fear of serious bodily injury; or(6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.

I don't know that I have seen all of the complained-of tweets, but MySanAntonio.com published four of them, which I'll assume are representative:

Crucifixion. Lethal injection. Lapidation. "Eliminated." "Tortured, jailed then hung." Are these "threats"? Surely even Messrs. Perry, Kasich, and Dewhurst, if they read these tweets, wouldn't be placed in fear of bodily injury. But the standard is not whether they would be, but whether the speaker intended for them to be:

The offense of terroristic threat is completed if the accused, by his threat, sought as a desired reaction, to place a person in fear of imminent serious bodily injury, and it is immaterial whether the accused had the capability or the intention to carry out his threat. ((In re A.C., 48 S.W.3d 899 (Tex. App. 2nd Dist. 2001, review denied).))

If the terroristic-threat statute is broad enough to reach these tweets, then Texas's terroristic-threat statute ((Like its online-solicitation, online-impersonation, and improper-photography statutes.)) is an unconstitutionally overbroad violation of free speech. The threats that are not protected by the First Amendment are "true threats":

"True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States, supra, at 708, 89 S.Ct. 1399 (‘political hyberbole' is not a true threat). ((Virginia v. Black, 538 U.S. 343, 359 (2003).))

This is in accord with pre-Penal-Code Texas Court of Criminal Appeals opinions on threats-for example, WWII-era Brown v. State ((Brown v. State, 154 S.W.2d 464, 465 (Tex. Crim. App. 1941))) ("The law is very definite and positive. The threat must be seriously made and not merely the outburst of one's temper in the heat of passion. It must be the expression of a conclusion deliberately made") and Depression-era Strong v. State: ((Strong v. State, 255 S.W. 432, 433 (Tex. Crim. App. 1923))) ("A rash, inconsiderate threat will not suffice to support the imposition of a penalty upon a citizen"). ((Are we getting more effete with the passage of time? Of course we are.))

Assuming for the sake of argument that these tweets-so obviously satirical that even a Texas elected official must see it-are unprotected "true threats," can the State come close to making the other-specific intent-element of a terroristic-threat charge?

Perhaps the speakers intended to either:

(1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies;(2) place any person in fear of imminent serious bodily injury;(3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place;(4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service;(5) place the public or a substantial group of the public in fear of serious bodily injury; or(6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.

...people do crazy things. But proof beyond a reasonable doubt? I'm sure not buying it, and I think it'd be a hard sell to a jury.