I have been watching the events at my alma mater that led to the resignation of MU System President Tim Wolfe and Chancellor R. Bowen Loftin from afar. While I had heard inklings of discontent, I had no idea it was at this point until the football team got involved.

73741_1401374325373_749181_nOn many levels, I am trying my best to understand all the nuance involved, but am having difficulty. I haven’t been back to campus for five years to, of course, watch a football game.

Do I believe there is racism in Columbia, Missouri? Probably. Just like there probably is anywhere else in society. As a white male, I am probably not in a position to fully understand.

From the published reports, the protesters’ complaints appear to be isolated events that were handled poorly by the school administration or without enough concern. Part of the students’ concerns centered on how their protest at the Homecoming Parade was handled which you can watch here.  Things also did not go well when Wolfe was confronted in Kansas City a few weeks later.

Another complaint centers on racist taunts by unknown passersby to the African American young man who was elected student body president and homecoming king. Painting an entire school as racist, a school that elects a gay African American student to be president and homecoming king, is unfair. You can read about the events that led to the resignations here.

Should the administration have handled it better? Obviously. Letting it get to the point where the football team threatened not to play means it wasn’t handled the right way and probably left the school with few options.

Were the protestors’ demands unreasonable? Probably. Asking the system president to write a handwritten apology to the Concerned Student 1950 demonstrators and hold a press conference reading the letter while acknowledging his “white male privilege” and admitting to “gross negligence” takes away from the otherwise legitimate concerns raised. To throw in some law in the discussion, demanding racial quotas for the faculty and staff (“We demand that by the academic year 2017/2018, the University of Missouri increases the percentage of black faculty and staff campuswide to 10%) is probably unconstitutional.

One of the students then began a public hunger strike until the demands were met. Then, the football team got involved and refused to play until the hunger strike ended.  Head coach Gary Pinkel supported his players. Was this the right move? It certainly moved the needle, but I worry about whether a handful of players and then the team, as a whole, were leveraged. It is both encouraging, and somewhat alarming, to see young men take their position of prestige as SEC college football players and use it to get involved. Will this set a precedent and where is the line? Reading Tigerboard (admittedly not a place for cool-headed, well-reasoned analysis), the fan reaction was certainly mixed.

LoftinAbout 24 hours after the football team’s actions became public, the president resigned followed by the chancellor. Although the chancellor’s resignation becomes effective at the end of the year and may have had more to do with issues other than the handling the student protests. Ironically, the football team may be worse off with a new chancellor less supportive of the athletics department.

In response, Mizzou has promised to implement changes within the next 90 days which include:

  • The creation of a new position for a Chief Diversity, Inclusion and Equity Officer within the UM System which has already been filled on an interim basis
  • A review of UM System policies regarding staff and student conduct
  • Additional support for students, faculty and staff who have “experienced discrimination and disparate treatment”
  • Additional support for the hiring and retention of diverse faculty and staff
  • the creation of system-wide and campus-based diversity, inclusion and equity task forces
  • an education training program for holders of the university’s top leadership positions

Had the administration taken these steps prior to the football team’s involvement, would there have been two resignations? We may never know because we don’t know what would have happened with the hunger strike and what would the reaction have been had the administration gone 90% of the way but not conceded to all of the demands (which they could have never done). It may have gone a long way to assuage opinion of the public and maybe, more importantly, the football team.

Yes, this story does speak to better crisis communication techniques and the importance of getting in front of a controversy. The number one lesson for crisis communications is to be prepared and to have a plan. Once the controversy began, the school should have had a singular unified message.

If bombarded off campus (or even during the Homecoming Parade), the proper response would have been a polite refusal to engage at that time as it was not the appropriate time and place. There could have been a somewhat prepared “holding statement” such as “we take these issues seriously and are taking steps to ensure that every student is provided the best environment we can provide. This is not the time or place to get into the specifics, but we will be providing more details soon and invite continued discussions on the topic in the near future.” It would not have placated the protesters at the time, but it would not have added more fuel to the fire. A flagship state university is a much different animal than a private business, but the same basic tenets apply.

But, I justify this longer than usual and personal musing based on what happened next. Watch this:

As my wife gets tired of hearing, the University of Missouri is home of the best journalism school in the world. (I linked to something so it has to be true!) The student journalist handled this situation perfectly. The protestors — not so much.

Here are some basics about the First Amendment. The protesters have a right protest in the public parts of campus. And, yes, the very same First Amendment gives the journalists the right to cover the story from public property.

For the legal wonks, the Carnahan Quadrangle is very likely a limited or designated public forum being that it is on a university campus. Content-based speech restrictions are therefore subject to strict scrutiny. The school, however, can put reasonable time, place and manner restrictions as long as the restrictions serve an important governmental interest and the restrictions are narrowly tailored to serve that important governmental interest.

No one kept the protestors from doing their thing. Instead, the protestors tried to keep the media from doing theirs – covering the protest, which ironically is normally what protestors want.  It is true that journalists have no greater rights than non-journalists when it comes to accessing public property, but when you engage in a protest on public property, you can’t claim some of the public property as your own. The journalists had a right to be anywhere on the public grounds to cover the story.

The photographer handled the situation well making the Mizzou Mafia proud. You can read some perspectives of the journalists covering the story here and here.

More troubling, however, was the conduct of some of the Mizzou faculty who, in my opinion, mistreated the journalist and should have known better. For example, near the end of the video, a Mizzou professor of mass media (with the School of Communications and not the School of Journalism) tried to grab the camera and then yelled, “Who wants to help me get this reporter out of here? I need some muscle over here.” Ironically (a repeated theme to this story), this same professor had asked for media attention a few days prior. Unfortunately, this strange treatment of journalists is detracting from the protester’s efforts to further their true cause.

I don’t believe MU System President Tim Wolfe, or Chancellor R. Bowin Loftin, or Mizzou itself, is, in any way, racist. They could have handled the situation better and reacted quicker. Their downfall is a result of that failure. But, shouldn’t we hold the protesters, or at least the faculty that joins the protesters, to the same standard? The faculty member could have handled it better and, perhaps there should be some repercussions, on her end. The School of Journalism has already started distancing themselves from the faculty member and released this statement in support of the journalists. (Here’s another perspective from a law professor at Mizzou and more from one my former instructors at the J-SchoolStacey Woelfel).

The bad news is that it looks like two men who worked hard and wanted the best for the university lost their jobs. Another person who appeared to be a well-liked professor may lose hers, too. The whole thing is a circus.

The good news is the hunger strike is over, there may be some changes to redress the situation, and hopefully both the administration and the protesters can learn from this.

For the rest of us, life will go on and I will continue to support my alma mater from afar. After all, there is a football game to played on Saturday.

Update: The professor in the video has apologized and resigned from her “courtesy appointment” with the J-School.

Part 2 – In Practice

Go to Part 1 – The basics of the Texas Anti-SLAPP law.

The exercise of the right to free speech on matters of public concern

             It is easy to see how this applies to your straightforward defamation case assuming the defendant engaged in the “exercise of the right of free speech” which means “a communication made in connection with a matter of public concern.” A “matter of public concern” is an issue related to:

  • health or safety;
  • environmental, economic, or community well-being;
  • the government;
  • a public official or public figure; or
  • a good, product, or service in the marketplace.

If the defendant who has been sued can show the allegedly defamatory speech was about a “matter of public concern,” then the burden shifts to the defendant to come up clear and convincing prima facie evidence of a valid defamation claim.  A lot of the litigation concerns whether the speech is a matter of public concern and whether the plaintiffs can provide the clear and convincing evidence to avoid dismissal.

What about the right to petition and the right to association? How broad are those?

            The Act also covers the right to petition and the right to association which greatly broadens its application as courts struggle with the definitions noting that only the “exercise of free speech” is limited to “matters of public concern.”  The TCPA defines “exercise of the right of association” to mean “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.” Tex. Civ. Prac. & Rem Code § 27.001(2).  The “exercise of the right to petition” is defined with reference to a specified list of communications that have a nexus to participation in government. Id. at § 27.001(2)-(4).

Are internal emails matters of public concern and do they have to be?

            Earlier this year, the Dallas Court of Appeals held that the law did not apply to internal communications within a company about an employee’s performance because that was not a matter of public concern despite the claim by the employer (ExxonMobil) that the issues touched on matters of public safety.  See ExxonMobil v. Coleman, 2015 WL2206466 (Tex.App.—Dallas May 12, 2015), rule 53.7(f) motion granted May 29, 2015.  Of more interest is that ExxonMobil also moved to dismiss the claim because it argued it was engaged in the right of association.

            ExxonMobil claimed that the plaintiff failed to “gauge” one of the storage tanks and after an investigation ExxonMobil terminated him.  The plaintiff denied all wrongdoing and sued ExxonMobil and the employees who participated in the investigation for publishing defamatory statements about him during the internal investigation bringing the TCPA into a typical employment dispute.

            Both the trial court and the court of appeals held the TCPA did not apply and refused to dismiss the suit.  Despite the defendants’ efforts to claim it was a matter of public safety, the court found the investigation focused on job performance and not the results that could happen if the storage tanks were not properly maintained.  Therefore, the statements “involve nothing more than an internal personnel matter at Exxon” and therefore “were not a matter of public concern.”

            With regard to the right to the association, Exxon argued the communications were made between Exxon employees regarding issues in which they shared a common interest, specifically Coleman’s job performance and his compliance with the safety guidelines.  In response, the Court of Appeals wrote:

Although these commuinications seem to fall within the plain language of the Act’s definition of the exercise of the right of association, we decline to read the statute so broadly, concluding it would lead to absurd results.

Id. at *4.  The court then spent numerous pages explaining that reading the definition of the right to association in a vacuum without considering the purpose of the act would encompass any private communications between two people about any shared interest.  The court, therefore, reasoned the “public participation” had to apply to the defendant’s engagement in the right to association and the right to petition as well.

Can the right of association govern every corporate email?

            The court relied in part on the First Court of Appeals decision in See Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 216–17 (Tex.App.–Houston [1st Dist.] 2014, no pet.). In that case, the plaintiff sued her former employer for wrongful termination and sued two former coworkers for tortious interference.   449 S.W.3d at 211–12.   The coworkers moved to dismiss the claim against them under the Act, asserting the plaintiff’s lawsuit was brought in response to their exercise of the right of association.  Id. at 212.   The plaintiff filed a response, but neither side filed any affidavit evidence.   With only the pleadings to go on, the trial court denied the motion to dismiss.  Id.  The court of appeals upheld the trial court’s ruling, concluding the coworkers failed to meet their burden to show they were entitled to dismissal because the limited allegations in the plaintiff’s pleadings did not show the coworkers had a communication, acted in furtherance of a common interest, or that the claim against them is related to their exercise of the right of association.  Id. at 214–15.

            Referring to the title of the Act, the court noted that the terms “citizen” and “participation” contemplate a larger public purpose.  Id. at 216.   It further stated the plaintiff’s lawsuit did not implicate the legislature’s express declaration of the purpose behind the Act, which indicates that a nexus is required between the communication and the generally recognized parameters of First Amendment protection.  Id.  “Otherwise, any communication that is part of the decision-making process in an employment dispute—to name just one example—could be used to draw within the [Act’s] summary dismissal procedures private suits implicating only private issues.”   Cheniere Energy, 449 S.W.3d at 216–17.

            Two members of the three-judge panel concurred, writing separately to emphasize that the Act did not apply to the plaintiff’s tortious interference claim against her coworkers.  Id. at 217 (Jennings, J., concurring).   The concurrence stated that, standing alone, the Act’s definition of the “exercise of the right of association” in section 27.001(2) appears to include communications that are not constitutionally protected and do not concern citizen or public participation.  Id. at 219.   The concurrence stated that reading section 27.001(2) in isolation would lead to absurd results and would “actually thwart any meritorious lawsuit for demonstrable injury in which a plaintiff alleges that two or more persons engaged in a civil wrong involving a communication.”  Id.  At a minimum, such a reading would add unnecessary delay and expense to a plaintiff’s lawsuit.  Id.

But, the Texas Supreme Court says don’t amend the Act.

            This decision followed the Supreme Court of Texas’s opinion in Lippincott v. Whisenhunt, __ S.W.3d __, No. 13-0926, 2015 WL1967025 (Tex. April 24, 2015).  In that case, the defendants allegedly made disparaging comments about the plaintiff, who was a certified registered nurse anesthetist contracted to provide anesthesiology services, in emails internally to the company.  The allegedly defamatory emails included allegations that the plaintiff represented himself to be a doctor, endangered patients for his own financial gain, and sexually harassed employees.

            The plaintiff sued for defamation, tortious interference with existing and prospective business relations, and conspiracy to interfere in business relations.  The defendants moved to dismiss all of the claims based on the TCPA.  The trial court dismissed all of the claims except for defamation because the plaintiff was able to provide prima facie evidence of the defamation claim, but not the others.

            The court of appeals reversed and remanded holding the act does not apply to “private” communications such as internal emails thereby reviving all of the plaintiff’s claims.  The Supreme Court ruled there is no requirement that the communications themselves have to be public.  Instead, the statute only requires that the communication be made in connection with a matter of public concern.

            With regard to whether the communications involved matters of public concern, the court wrote:

The allegations include claims that Whisenhunt “failed to provide adequate coverage for pediatric cases,” administered a “different narcotic than was ordered prior to pre-op or patient consent being completed,” falsified a scrub tech record on multiple occasions, and violated the company’s sterile protocol policy. We have previously acknowledged that the provision of medical services by a health care professional constitutes a matter of public concern. See Neely v. Wilson, 418 S.W.3d 52, 70 n.12 & 26 (Tex. 2013) (determining that the public had a right to know about a doctor’s alleged inability to practice medicine due to a mental or physical condition); see also TEX. CIV. PRAC. & REM. CODE § 27.001(7) (defining “matter of public concern” to include issues related to health or safety, community well-being, and the provision of services in the marketplace, among other things). Thus, we conclude these communications were made in connection with a matter of public concern.

Id. at *2. The court concluded that because the defendant had demonstrated the applicability of the act, the court of appeals had to consider whether the plaintiffs had met his prima facie burden of proof.

            In the decision the Supreme Court of Texas said that courts should not “judicially amend” the act by adding words that are not there.  Id. at *1.  The Dallas Court of Appeals considered the instruction from the higher court, but wrote:  “Although we are aware that in Lippincott, the supreme court cautioned against “judicially amending” the Act by adding words that are not there, we agree that the legislature could not have intended for section 27.001(2) to be read in isolation.  We conclude that, to constitute an exercise of the right of association under the Act, the nature of the “communication between individuals who join together” must involve public or citizen’s participation.”  ExxonMobil, 2015 WL 2206466 at *6.

Part 3 will look at the impending Schlumberger decision.

The Texas Court of Criminal Appeals ruled in a 8-1 decision yesterday that the “Improper Photography and Visual Recording Act” is facially unconstitutional.  The case involved a guy who allegedly took pictures of kids at a water park.  You can read more here.

Before you say, you are not a creepy person taking pictures of random kids and therefore don’t agree or don’t care, if you believe photography is art protected by the First Amendment, you should care.

The Facts of the Case

The law provides, in relevant part:

 A person commits an offense if the person:

 (1) photographs or by videotape or other electronic means records . . . a visual image of another at a location that is not a bathroom or private dressing room: 

(A) without the other person’s consent; and

(B) with intent to arouse or gratify the sexual desire of any person.

Ronald Thompson was charged with twenty-six counts. Each count of the indictment alleges that appellant, “with intent to arouse or gratify the sexual desire of THE DEFENDANT, did by electronic means record another . . . at a location that was not a bathroom or private dressing room.”

We can all agree — creepy.

The Ruling

The first issue the court wrestled with was whether photography was conduct (subject to regulations) or speech protected by the First Amendment like other forms of art.  The court found that pictures, even bad ones, are expressive and therefore are subject to First Amendment scrutiny.   The court continued, “the process of creating the end product cannot reasonably be separated from the end product for First Amendment purposes” so the act of taking picture is also subject to First Amendment scrutiny.

The state reasoned, however, that the law regulates intent and therefore, even if considered speech, it can be regulated just like incitements to riot, threats or scams.  The court responded:

Sexual expression which is indecent but not obscene is protected by the First Amendment . . .  Of course, the statute at issue here does not require that the photographs or visual recordings be obscene, be child pornography, or even be depictions of nudity, nor does the statute require the intent to produce photographs or visual recordings of that nature. Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought, and such a regulation is outside the government’s power.

The court then found the law “penalizes only a subset of non-consensual image and video producing activity—that which is done with the intent to arouse or gratify sexual desire” meaning it was a content-based regulation.  As I can hopefully teach my Media Law students (hint for the test), when there is a content-based law, it is subject to a strict scrutiny analysis which means a regulation of expression may be upheld only if it is narrowly drawn to serve a compelling government interest.  A regulation is “narrowly drawn” if it uses the least restrictive means of achieving the government interest.

Like most other laws subject to a strict scrutiny test, this one failed, too.  It was not narrowly drawn.

The Takeaway

Although well-intentioned, the law simply covered too much.  This law would allow a police officer to ask every photographer taking pictures of people in the public what their intent was.  If I was taking pictures of my kids at the park, the police could ask me why.  If I am doing it to show how nice my city is, I am OK.  If I am doing it because I am creepy, it is against the law.

As the court noted:

The statutory provision at issue is extremely broad, applying to any non-consensual photograph, occurring anywhere, as long as the actor has an intent to arouse or gratify sexual desire. This statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street.

Having the police govern the intent of our photographs is not sustainable.

I am guessing our readers are not going to run out now and start taking creepy pictures because of this ruling.  But, it is comforting to know photographs are protected speech, the taking of photographs is subject to First Amendment analysis and the government does not have the right to ask me why I am taking pictures of people in public places.

With that said, we may not be thrilled this about this guy.  If he crosses the line, he could still get in trouble for child pornography, invasion of privacy, unauthorized use of likeness or other wrongs if he actually harmed any of the people he photographed or used them commercially.

Our Constitutional protections, however, often protect the people on the edges so the rest of us know we are secure.  Although the police may not be able to ask his intentions, if this guy is taping kids my kids at the park, I still can.

You can read the opinion here.

Everyone supports the prevention of sexual predators texting illicit material to people under 17.  Everyone knows that revenge porn is a scourge on public decency.  But, can the law do anything about it?  Should it?

Texas Throws Out Law Banning Explicit Online Communications With Minors.

Yesterday, the Texas Court of Criminal Appeals (our highest court that hears criminal cases) reversed the conviction of a 53-year-old man who was charged with the third degree felony of communicating in a sexually explicit manner with a person whom he believed to be a minor with an intent to arouse or gratify his sexual desire.  You can read about the case here and read the court’s decision here.

The overturned law, Texas Penal Code 33.021(b)(1) states:

A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

To be clear, you cannot solicit a minor for sex (conduct), but sending indecent, but not obscene materials (protected speech) is not illegal.  The court said criminal laws “may protect children from suspected sexual predators before they ever express any intent to commit illegal sexual acts, but it prohibits the dissemination of a vast array of constitutionally protected speech and materials.”  The court also noted there are several other statutes that criminalize other inappropriate conduct with minors.

For the constitutional lawyers out there, the court determined the  “sexually explicit communications” provision is facially unconstitutional because it is content-based speech regulation that could not withstand the strict scrutiny analysis.  Under that test, there needs to be a compelling state interest and the restriction on speech must be narrowly tailored.

While there is a compelling state interest to protect minors from sexual predators, the law covers merely indecent speech which is constitutionally protected.  In light of the many other laws that protect children (solicitation, child pornography, obscenity, harassment), the court said the restriction was too broad.

Subsection (b) covers a whole cornucopia of “titillating talk” or “dirty talk.” But it also includes sexually explicit literature such as “Lolita,” “50 Shades of Grey,” “Lady Chatterly’s Lover,” and Shakespeare’s “Troilus and Cressida.” It includes sexually explicit television shows, movies, and performances such as “The Tudors,” “Rome,” “Eyes Wide Shut,” “Basic Instinct,” Janet Jackson’s “Wardrobe Malfunction” during the 2004 Super Bowl, and Miley Cyrus’s “twerking”* during the 2013 MTV Video Music Awards. It includes sexually explicit art such as “The Rape of the Sabine Women,” “Venus De Milo,” “the Naked Maja,” or Japanese Shunga. Communications and materials that, in some manner, “relate to” sexual conduct comprise much of the art, literature, and entertainment of the world from the time of the Greek myths extolling Zeus’s sexual prowess, through the ribald plays of the Renaissance, to today’s Hollywood movies and cable TV shows.

*I will leave it for someone else to determine whether this is the first reference to “twerking” to make it into case law — a sign that the fad needs to go.

The prosecutors say they may appeal to the U.S. Supreme Court.

Revenge Porn – a perplexing topic for legislators

The American Bar Association recently wrote an excellent article on revenge porn you can read here.  For the uninitiated, revenge porn is when the ex publishes what were supposed to be private nude pictures for the world to see often including full names, addresses, phone numbers and links to social media profiles.  There is a whole cottage industry bubbling up of websites who encourage posters to provide this information.

As a victim, you can bring civil claims like invasion of privacy, intentional infliction of emotional distress and copyright claims if you took a selfie because the copyright usually belongs to the photographer and not the subject.  But, these claims are expensive to bring and there are no guaranties because a lot of people blame the victim for having nude pictures in the first place.

Meanwhile, it is hard to sue the websites where these pictures are downloaded because Section 230 of the Communications Decency Act gives immunity to websites based on claims related to user generated content.

California passed a law last month that seeks to punish “Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.

Professor Goldman on his Technology and Marketing Law Blog points out the faults of the law which include: (i) it does not apply to selfies; (ii) it does not apply to redistribution or websites which could have Section 230 issues; and (iii) the difficulty in proving beyond a reasonable doubt the parties’ expectations of privacy or the intent of the accused.

While having the intent to cause severe emotional distress may avoid First Amendment scrutiny, over broad laws would cover the publishing of Anthony Weiner’s infamous photos. Here is a Wired article by Sarah Jeong arguing that criminal laws may not be the answer.

While there are some class action lawsuits against some of the sites that encourage this behavior that we will keep an eye on, one of the best weapons may be to shine the light on the scum who engage in revenge porn using the same social media tools and the let the markets take care of the websites.

UPDATE – NOVEMBER 1 – Ask a question and the Internet answers.  Professor Goldman directed me to one of his earlier tweets:


I don’t often make predictions on legal outcomes, so when I do and I get it right, it’s worth sharing.  In May, we talked about whether “liking” a candidate would constitute protected speech under the First Amendment.  A district judge in Virginia ruled it was not.  The Fourth Circuit Court of Appeals recently reversed in Bland v. Roberts.

In that case, a jailer in Virginia liked his boss’s opposition during a campaign for sheriff. The incumbent won and the plaintiff was fired. The sheriff said it was for competency issues, but the plaintiff said retaliation was the motivating factor for the termination.

I wrote back then that “it seems like a slam dunk case for our fired jailer,” before describing the district court’s dismissal based on the judge’s opinion that “liking” something on Facebook did not amount to a “substantive statement” worthy of protection.  Both the lunacy of the idea of liking a candidate on Facebook not being considered “substantive” enough to warrant protection and the questions asked during the appeal according to this Bloomberg report, I wrote, “I would put my money on a reversal.”

Winner, Winner Chicken Dinner! 

Reversing, the Fourth Circuit compared liking on Facebook to putting a campaign sign in your yard.  “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.”

It is not likely your “like” will get you fired and set up a Supreme Court case. The lesson, however, is to be careful of making employment decisions based on what you see on Facebook.  The issue is more problematic for public employers, but as we have discussed before even non-union private employers need to make sure their social media policies and employment decisions do not upset the NLRB. ”Liking” a complaint from a co-worker about working conditions cannot be the basis of a termination.  In some states, it is illegal to fire someone for engaging in protected speech.  ”Liking” Coke when you work at Pepsi in an at will state, like Texas, can still probably get you fired.

Sometimes, when you read the basics of a story, it sounds so incredulous, you think “surely, there has to be more to it.”  Enter the story of 19-year-old Texan Justin Carter.   The quick headlines usually read – Texas Teen Faces Eight Years for Facebook Comment.

Unfortunately for Justin, the post was about shooting up kindergartners.  Hence, he was charged with making “terroristic threats” and was for over three months because of a $500,000 bond that recently got paid by an anonymous supporter.

During an online multi-player game of League of Legends when Justin was 18, he got into an argument with someone on Facebook about it.  After someone called him messed up in the head, according to the arrest warrant in the case, Justin wrote:

“I’m f–ked in the head alright, I think Ima SHOOT UP A KINDERGARTEN



According to Justin’s family, the next two lines were “lol” and “jk.”

Allegedly, a Canadian woman saw the post and called the police.  For more on the story, read here.  Surprisingly, that’s about it — the whole story.  It does not appear Justin was a real threat, had any past issues, meant for any law enforcement to get involved, or took any actions to carry out the alleged threat.

Instead, he has been charged with a violation of Section 22.007 of the Texas Penal Code which reads:

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.

. . . 

(e)  An offense under Subsection (a)(4), (a)(5), or (a)(6) is a felony of the third degree.

The main issue in this case is hilited — Intent.  It is not clear whether the prosecutor is going to try and prove a violation of 4, 5, or 6 (we know they are pressing for a third degree felony), but does it really matter?  Can anyone prove, beyond a reasonable doubt, Justin intended to scare anyone or get law enforcement involved.

There are real threats made on social media and elsewhere.  People that make bomb threats or take other actions meant to scare targeted people or waste law enforcement’s time should be prosecuted.  People who have bad taste shouldn’t.

We can prove beyond a reasonable doubt, the comment was in bad taste — but the same may hold true for trying to prosecute the man unless there really is more to this story that has not come out yet.