The Reappropriate Podcast Episode 12: Free Speech and Online Threats

I really enjoyed my guest stint on the Reappropriate video podcast, hosted by Jenn of Reappropriate.com. You can view the podcast on YouTube to hear my thoughts on the Supreme Court, judges and technology, free speech, online threats, subjective intent, the reasonable person, rap music, and much more.

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Why Isn’t Everyone More Like Me?

Recently I’ve heard a lot of people complaining about how other people use Facebook. “Facebook is for keeping up for friends, not for politics!” “Does she really need to post a selfie every single day?” “I hate people who always are always promoting themselves on social media.” “I’m tired of looking at pictures of his damn cat!”

These questions are modern variants of an age-old lament: “Why isn’t everyone more like me?” The reality is that people use social media different ways and complaining about it is a little bit silly. Some people like to have political debates on Facebook, and some don’t. Some people like to share updates about their careers, and some don’t. Some people like to post about their love lives, and some don’t. Some people post a lot of vacation photos and some don’t. Some people post a lot of selfies or pictures of their children or pictures of their cats or inspirational quotes or pictures of what they ate for dinner. And some don’t. Continue reading

On Colorado Politics From the Source: Discussing Mike Brown and Eric Garner

Last week I was part of a great discussion of the grand jury refusal to indict the officers responsible for the deaths of Michael Brown and Eric Garner on Colorado Politics from the Source. My co-panelists are former Colorado Speaker of the House Terrance Carroll, police  use-of-force expert Dan Montgomery, and host Eli Stokols. Click here to view the half-hour long program, which aired on Denver’s Fox affiliate.

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Black Women’s Lives Matter

After the recent series of police-caused deaths of unarmed black men, the New York Times ran an op-ed yesterday titled “We Must Stop Police Abuse of Black Men.” The compelling piece is by Eric L. Adams, who is the Brooklyn borough president, a retired New York Police Department captain, and the co-founder of 100 Blacks in Law Enforcement Who Care. The piece sheds light on both police culture and the effect of harsh policing on black men. There are particular ways that many standard law enforcement practices have a profound negative effect on black men, and the conversation about these practices is critically important.

At the same time, it’s important to remember that law enforcement practices affect black women and girls, as well, and that this conversation is also crucial. The stories of black women killed by police are absolutely heartbreaking. A few that have recently received some attention: Continue reading

Post on ACS Blog: “Executing the Mentally Ill”

I have a post on the American Constitution Society Blog today about the latest developments in the case of Scott Panetti, the severely mentally ill man who Texas is scheduled to execute tomorrow, 12/3, at 6pm CT. Please check it out, and consider signing the Change.org petition as well.

Argument Recap: Elonis v. United States

The following post originally appeared on the blog “Hamilton and Griffin on Rights.” The owners of the blog have kindly allowed me to cross-post it here.

The year 2014 has raised many issues relating to offensive, harassing, and threatening Internet speech. In January, columnist Amanda Hess wrote a piece called “Why Women Aren’t Welcome on the Internet,” sparking a wide-ranging and still-ongoing conversation about online speech. The debate over Internet speech has extended to other areas. New York’s highest court considered and ultimately rejected a state cyberbullying statute as overbroad, in violation of the First Amendment. More than twenty states passed or are considering statutes criminalizing revenge porn. Meanwhile, intimate photos of celebrities were stolen, downloaded, and shared over and over. GamerGate led to intense online harassment of women involved in the video game industry, with serious consequences in the offline world—after receiving graphic anonymous threats, pop culture commentator Anita Sarkeesian cancelled a talk, while video game developer Brianna Wu had to leave her home for several days.

It’s fitting, then, that the Supreme Court should hear argument today in Elonis v United States, a case involving involving arguably threatening posts on Facebook. The Supreme Court has held that “true threats” may be criminalized consistent with the First Amendment, although it has not defined the term “true threats” with any precision. The issue Elonis presents is whether a person can be convicted of making true threats if a reasonable person would have perceived the statements as threatening, or whether, as Elonis argues, the government must also prove that the speaker subjectively intended to make a threat. Continue reading

New Piece in the Atlantic: “Will Texas Execute a Mentally Ill Man?”

My colleague Justin Marceau and I have a piece in the Atlantic about the execution of Scott Panetti, scheduled for Wednesday in Texas. Mr. Panetti has a thirty-year history of paranoid schizophrenia and has not had a competency hearing in seven years.

New Huffington Post Piece: “Getting the Facts Right on the Ferguson Grand Jury Decision”

I have a new piece for Huffington Post clarifying some aspects of the grand jury process in Missouri that I’ve seen misstated in the media and elsewhere. Like everyone else in America right now, I have an opinion about the grand jury process, but I hope this piece will simply explain how the process works for those who are less familiar with it. As others have argued and as I tend to agree, our grand jury process is an odd one, and understandably confusing to non-lawyers.

As an additional reference, here is the portion of the Missouri code relating to grand juries. Again, remember that this is a state grand jury, not a federal one, where of course many of the procedures are different.

What I Read Last Week, Ferguson Edition

What I read this week was mostly about the Ferguson grand jury decision not to indict Darren Wilson for the shooting of unarmed, eighteen-year-old Michael Brown. Here is a non-exhaustive list of pieces I found valuable:

Noah Feldman, Ferguson’s Grand Jury Problem: Feldman begins by recounting the historical origins and typical operation of the grand jury. “All this background is necessary to explain why it was so strange for the prosecutors in Ferguson case to announce that they were going to present evidence to the grand jury and then let it make up its own mind. Prosecutors never treat the grand jury that way. They present a case to the grand jury only if they are actively seeking to prosecute — then they show the jury the prosecution’s side of the case, and direct the jury to indict if there is probable cause to go forward.”

The Nation Editors, Why Ferguson Burns: “[A]s recent cases remind us, when the suspect has dark skin, what counts as an “objectively reasonable” use of force by police may be prompted by a toy gun, a loose cigarette, the symptoms of mental illness, or a person simply walking into the darkened stairwell of his own building. This two-tiered system of justice—one for civilians, the other for law enforcement—must end.” Continue reading

Tamir Rice, Age Twelve

By now most people have heard about the tragic police shooting of Tamir Rice, a twelve year old boy in Cleveland. Two police officers shot Tamir in a public park. In the minutes leading up to the shooting, Tamir intermittently talked on his cell phone, threw snowballs, and played with an airsoft pellet gun.

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Tamir Rice. (AP Photo.)

The police came to the park because another person in the park called the police and said that someone was holding a gun, noting that the gun was “probably a fake” and that the “guy” holding the gun was “probably a juvenile,” but that the juvenile was “scaring people” with the gun. The police then drove into the park at a high speed and shot Tamir literally within two seconds of arriving in the park. The car had not yet stopped rolling when the shot was fired. A video of the incident is available here. I recommend that everyone watch it. Continue reading