Democracy Tree: Social media threats may land faux patriots in prison

By Amy Kerr Hardin

A firestorm of reprehensible, and possibly illegal, threats were directed at progressive filmmaker and political lightning-rod Michael Moore last week after he tweeted that, while growing-up, his family taught him that snipers were cowardly — a sentiment driven by the death of his uncle from a sniper’s bullet in WWII. Moore did not specifically reference “American Sniper,” the box office film hit directed by Clint Eastwood, but surely it was the inspiration for his statement.

There were vulgar and intimidating remarks targeted at Moore, some with a death threat at the end.
That could be a felony. Under U.S. Code Title 18, Part 1, Chapter 41, § 875(c) certain threats, including perceived threats, are a crime:
“(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”
The legal standard for the definition of a “threat” under this statute has traditionally been recognized by the courts to be in the eyes of the victim, meaning did they, as a reasonable person, feel personally threatened by the remarks? The actual intent of the perpetrator does not enter into the equation. In a court of law — a perceived threat is a real threat, no distinction, no excuses.
In the face of the multitude of ominous social media comments directed at Moore he’s once again sought personal protection. From his Facebook post:
“I only hire Navy SEALS and ex-special forces for when I need security – such as this week, when so-called supporters of those SEALs want me harmed.”
A dozen years ago, prior to the advent of Facebook and Twitter, Moore similarly felt compelled to hire bodyguards in the wake of his then controversial comments about the falsehoods that led us to war in Iraq. His personal security concerns were well-founded with several attacks, including a plot to bomb his home, foiled by law enforcement and private security. Six years later, Moore personally shared some of the details with me, and his distress was still evident.
The U.S. Supreme Court is currently deliberating the case of Elonis v. United States which challenges the standard of what constitutes a threat. Elonis was sentenced to serve nearly four years in prison after posting violent rap lyrics under the pseudonym “Tone Dougie” to a Facebook page threatening his estranged wife. Among them was this post cited by the court:
“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
For more than four decades the Supreme Court has held that threats are not protected by the First Amendment, however, they’ve distinguished that “political hyperbole” and “unpleasantly sharp attacks” are not necessarily threats.
The hinge-pin of the Michael Moore Facebook case is whether social media posts are considered private or public speech. Private speech enjoys a higher level of constitutional protection.
There were more than few direct and indirect threats found on Moore’s Facebook page — a public page with many followers. They were disturbing. Democracy Tree catalogued dozens over several hours after Moore’s fateful Tweet.
Moore is not the only person currently under attack for expressing an opinion related to the film about Chris Kyle. Social media snipers took issue with two journalists, Rania Khalek and Max Blumenthal, because they had the temerity to cite some of the less than heroic passages directly from the sniper’s autobiography. The fallout over speaking the truth was reported in The Guardian:
“… last week on Twitter when several liberal journalists drew attention to Kyle’s less Oscar-worthy statements. ‘Chris Kyle boasted of looting the apartments of Iraqi families in Fallujah,’ wrote author and former Daily Beast writer Max Blumenthal. “Kill every male you see,” Rania Khalek quoted, calling Kyle an “American psycho.”
Retaliation from the right-wing twittersphere was swift and violent, as Khalek documented in an exhaustive (and exhausting) post at Alternet.
Not one to shy away from controversy, Moore had much to say in return. With characteristic civility, he makes a compelling case that it’s the bumper sticker patriots who should be taken to task.
“Well, who would know better about hating our troops than those who supported sending them into a senseless war Iraq in the first place? And, for 4,482 of them, a senseless, unnecessary and regrettable death.
“If you supported that invasion, if you voted for George W. Bush and the Republicans and Democrats who backed this war, then you are the ones who have some ‘splainin’ to do. Not me. You.
Social media may seem like the wild west to the right-wing Clint Eastwood crowd — a place where they may fire off at will without consequences. The utter lack of cleverness of their fear-biting (and possibly drunken) comments stands as testament to the authors’ intellectual deficits and lack of adult judgement.
Nay, children have more sense than that.
Post Script: Moore is an Eagle Scout, a card-carrying member of the National Rifle Association, recipient of an NRA marksmanship award as a young man, and decidedly not a foe of the Second Amendment — he just despises America’s obsession with guns and the glorification of unnecessary wars.