Justin Carter, 19, was jailed for a Facebook comment

Have you ever lost your temper and said something in the heat of the moment you later came to regret? Did you end up waiting 5 months in jail for a trial because your family couldn’t make your half million dollar bail?

That’s exactly what Justin Carter’s family and attorney claim is happening right now in a Comal County, Texas jail, and his defenders allege that he is suffering badly and unnecessarily as a result of his incarceration.

Carter is in jail awaiting trial for what court documents have called the “terroristic threat” he made on his facebook page. It read:

“I’m fucked in the head alright / I think I’ma shoot up a kindergarten / and watch the blood of the innocent rain down / and eat the beating heart of one of them.”

Was it a threat, or a bit of tasteless, violent humor without intent to threaten or disrupt?

Carter’s father and attorneys have taken care to frame the comment in what they believe is its proper context. The statement, they explain, was the result of a gaming feud between Justin and another player of the popular online game “League of Legends.” Carter’s camp alleges that the youth followed his comment with “JK” (just kidding), which, if true, would all but resolve the case. Police deny that any “JK” disclaimer was present in the post.

Being twenty-two-year-old gamer myself, this sort of speech is not altogether alien to me. This sounds to me like a kind of brutal, animalistic boast, like Justin is telling his competitors “I’m a madman, don’t try to mess with me.” I’ve heard similar rhetoric from the most otherwise-gentle members of my own generation. Beyond the realm of gaming, frustrated statuses along the lines of “I’m gonna kill someone!” crop up in our news feeds all the time, usually inspired by traffic, overly long waits or a case of the Mondays.

So how exactly does the Texas Penal Code define a terroristic threat? It would seem, in summary, that the law defines a terroristic threat as any threat of violence intended to cause fear, public or private disruptions, or impairment of emergency services or public resources. Most often, cases dealing with “terroristic threats” are those aimed at specific individuals (exes/wives/partners) or law enforcement officers, but the term encompasses bomb threats or threats of poisoning, sabotage, or intention to commit violence in a manner detailed enough to result in the closing or diverting of services or places deemed to be at risk.

In terroristic threat cases, Texas state courts have stated that the crime requires proof that the person making the threat intended to place a person or group of people in fear of imminent bodily injury. (Dues v. State of Texas, Hellson v. State, Williams v. State and Tex. Penal Code Ann. §§ 22.01(a)(2), 22.07(a)(2))

Taken within the context provided by his defense, it would seem the only person meant to feel threatened by Carter’s statement would be whatever fellow gamer initiated the cycle of trash-talk. In other words, Carter meant to instill a “fear of losing” in someone, a competitive act that is obviously protected under the first amendment (What did Mike Tyson say to Lennox Lewis? “I want your heart. I want to eat your children”?).

There are checks in place to flag the kind of speech that would suggest an attack or an act of terrorism is imminent. But Justin Carter has been in jail for nearly 5 months now for online speech that was definitely insensitive, imprudent and which fell flat in the vacuum of the internet, but that was most likely not a terroristic threat meriting a $500,000 bail. By all means, send a student to counseling, monitor him if you must, put together a psychological analysis, but violent hyperbole, absent clear threats designed to provoke fear among specific people or disrupt or divert public resources and emergency services, is protected speech under the constitution.

There are some legal precedents for this kind of case (see these cases in Texas), and many suggest that Carter’s case could end in a not-guilty verdict.  In 2004, the California Supreme Court heard a case about a high school student’s poem that referred to a possible school shooting. The court’s statement is as follows:

“We consider in this case whether a high school student made a criminal threat by giving two classmates a poem labeled ‘Dark Poetry,’ which recites in part, ‘I am Dark, Destructive, & Dangerous. I slap on my face of happiness but inside I am evil!! For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I’m BACK!!’ For the reasons below, we conclude that the ambiguous nature of the poem, along with the circumstances surrounding its dissemination, fail to establish that the poem constituted a criminal threat.”

To me, this poem makes a statement analogous to Carter’s, and I believe that Carter’s trial, once heard, will end in a similar way. The difference in this case is that the defendant continues to suffer in custody while awaiting his trial as a result of the high bail that many attorneys and concerned parties agree is simply unheard of.

What we have in the case of Justin Carter appears to be a gross overreaction by law enforcement that does more to erode our rights than protect us. If online speech is going to be treated with so little critical analysis, we should all be very concerned about the state of free speech. Even if Carter is proven innocent of terroristic, threatening speech, the case will be a clear example of the chilling effect that web surveillance, coupled with a heightened sensitivity to violent remarks, can have on free expression on the web.