In which we discover that speech can have unexpected and profoundly undesired consequences.
January 10, 2011: Arlington, Mass., Heavy Ink comics retailer Travis Corcoran applauds shooting of Giffords, suggests shooting all other members of Congress as well. Comics creators and others are understandably are outraged. Several writers and artists request that people no longer patronize Heavy Ink and that the store no longer stock their product. Corcoran later deleted the offending comments, but of course by then the comments had been re-blogged and tweeted and were pretty much all over the internet. Quite honestly, in their original context (which we can no longer judge, as the original context has been disappeared), the remarks seemed callous and excessive, but not really a serious incitement to violence. (Which, from a purely technical point of view, isn't necessarily illegal in and of itself. But we'll get there.) Frankly, I'd be willing to be that he thought he was being provocative and kind of cute, in an utterly revolting way.
Unfortunately for Mr Corcoran, "provocative and kind of cute" does not seem to be the spirit in which his words wore taken by others, including his local police.
Posted by Brock Parker
January 18, 2011 04:54 PM (boston.com)
Police have seized a “large amount” of weapons and ammunition from an Arlington businessman while investigating if comments he allegedly made online were intended as a threat to U.S. Congressmen and members of the U.S. Senate.
Arlington Police Chief Frederick Ryan has also suspended the firearms license of Travis Corcoran, 39, who runs the online comic book business HeavyInk.com in Arlington.
Police Captain Robert Bongiorno said Monday that police suspended Corcoran’s firearms license on the grounds of “suitability” pending the results of an investigation into whether a comment Corcoran allegedly made online was intended as a threat in reference to the Jan. 8 shooting in Arizona that left six people dead and 13 wounded. After U.S. Representative Gabrielle Giffords was shot in the head in the rampage, Arlington Police Captain Robert Bongiorno said police received information that Corcoran posted a comment online saying “one down 534 to go” in reference to Giffords and the other 534 members of the U.S. House of Representatives and the U.S. Senate....
Note that the police had not and could not read Corcoran's original post, in which the offending comments no longer existed at the time of their examination. They're effectively moving on hearsay evidence. (Granted, quite an astonishing amount of it.) They then seize all of his firearms, suspend his firearms license, and access to his personal site has been blocked, although it's not clear that the police had anything to do with that. Police are now trying to determine whether or not his remarks constituted a credible threat before deciding whether or not to charge him with something.
Repulsive and repugnant as his comments may be, it does rather seem like they've put the cart before the horse. Surely they should have determined how credible a threat it was before confiscating his weapons and suspending his license. I'm not a huge fan of private gun ownership -- and he does seem to have had rather a lot of them -- but the police aren't asserting that he had any illegal arms, at least not at the current time.
Eugene Volokh • January 10, 2011 3:47 pm
[...] 1. The Supreme Court has made clear that threats — including threats against the life of the President — can only be punished if they are “true threats,” which is to say “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.” Constitutionally proscribable true threats are those “where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” The speaker need not actually intend to act on the threat, but the threat has to be reasonably perceived as a “serious expression of an intent to commit” that act....
[...] 2. In particular, the leading Supreme Court case, Watts v. U.S. (1969), held that the Constitution protects even the statement "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.," said at antiwar rally. Statements that place the President in a bullseye or a crosshair might thus be entirely constitutionally protected, if for instance the statement is in a Democratic or Republican party mailer urging people to give money to help defeat the President in the next election. A reasonable reader would not perceive such a flyer as a threat that the author, or the author's confederates, are going to actually shoot the President. As Jack Shafer (Slate) and many other have noted, martial metaphors are commonplace in American politics. The mere use of such a metaphor does not strip the speech of constitutional protection.
3. If the concern is not that the President will feel threatened, but that some readers might be moved by such statements to attack the President, the speech remains protected. Under Brandenburg v. Ohio (1969), speech may be restricted on such a theory only if it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added). Hess v. Indiana (1973) makes clear that speech doesn’t satisfy the “imminence” requirement if it is merely “advocacy of illegal action at some indefinite future time”[...]
It really does sound as though the Arlington police have no legal grounds for acting as they did. It will be interesting to see what, if anything, the federal authorities do with this case, now that they've also been called in. In theory, given that Heavy Ink undeniably engages in interstate commerce, they could try to get Corcoran under Title 18, Part 1, Chapter 41, Section 875 of the U.S. Code, regarding the transmission of threats in interstate commerce. Mind, the connection there would be extraordinarily weak; it's very clear that this isn't the sort of thing that this section of the act was meant to include. It's very clear that they're talking about transmitting direct threats or requests for ransom/payment as some aspect of a criminal act. And the idea that Corcoran himself seriously meant to threaten or could have killed every member of Congress is kind of laughable. (And incitement, whether seriously meant or not, isn't covered under that act.)
So, let's see: at this point, Corcoran has customers cancelling accounts, creators calling him out and requesting that their publishers no longer supply him with their books, all as a result of that post. That seems entirely right; words have consequences, after all. You may be allowed to say something, but nothing says that private individuals can't hold you to account in entirely legal ways, such as removing their business from you. That is the sort of price you need to be prepared to pay when you say something that mindbendingly stupid, insensitive, callous and detestable in public.
Police are, quite possibly illegally, confiscating his legally obtained and licensed weapons and trying to get the federal government to investigate him. That seems entirely wrong; words may have consequences, but these are precisely the sorts of consequences that the Constitution says the state may not exact from him. The state may not act against him unless a direct threat has been perceived, and nobody sane should see those words as a direct threat. Unfortunately, Corcoran's words were not only stupid, insensitive, callous and detestable but very very badly timed; something that might have gotten a brief (and probably unknown to everyone) quick look over by the Secret Service -- if it was even brought to their attention at all -- have turned into something all out of proportion to the actual words themselves.
I do not agree with what he said in any way, shape or form ... but it does seem that the state is abusing its power to get at him.Posted by iain at January 19, 2011 02:27 PM