“What I said was terrible, mean and downright stupid…. I wasn’t trying to scare anyone, I was trying to be witty and sarcastic. I failed and I was arrested.”
– Justin Carter, in a letter to District Judge Jack Robison
On February 14, in New Braunfels, Texas, Justin Carter was arrested on terroristic threat charges. Carter, then age 18, had been posting on a Facebook page for the game League of Legends. When a friend called Carter crazy, Carter allegedly volleyed back that, yeah, he was messed up in the head and that he was going to “shoot up a kindergarten, watch the blood rain down and eat the beating heart out of one of them.” A Canadian woman who viewed the comment reported Carter to law enforcement officials.
Carter’s father insists that his son immediately followed his first Facebook comment with “LOL” and “JK,” clear indications that Carter was . . . laughing out loud and joking when he wrote. Lest you think that explicitly stating that you are joking is enough to insulate your comments from criminal liability, Justin Carter was arrested, then charged by the Comal County Criminal District Attorney. In Comal County, txtspk cannot save you….
Carter remains in jail. According to Carter’s father, Jack, his son has been having a rough time in Comal County Jail. Jack Carter reports that his son has “had concussions, black eyes, moved four times from base for his own protection…. He’s been put in solitary confinement, nude, for days on end because he’s depressed.”
His family has been unable to pay his bail, set at $500,000. The court recently set a habeas hearing for July 16, this coming Tuesday. Carter’s parents have reached out for public support of their son. They have started an online petition calling for his release.
Make no mistake: Justin Carter’s conduct should not be held to a lower standard because he’s a “kid.” Younger men than Carter have committed acts as terrible as what Carter allegedly threatened, minus some of his theatrics. A federal court this week arraigned nineteen-year-old Dzhokhar Tsarnaev, one of the accused Boston marathon bombers. Adam Lanza, age 20, murdered twenty-seven people in the Sandy Hook Elementary School massacre, just two months before Carter’s comment. Jared Lee Loughner was 22 when he shot Rep. Gabby Giffords and killed six others, including Judge John Roll. Seung-Hui Cho, the Virgina Tech shooter, was 23. Eric Harris and Dylan Klebold, the Columbine shooters, were 18 and 17, respectively. Some very young men commit some very horrific crimes. No one ought to resist reporting suspicious comments just because the speaker happens to be an 18-year-old.
So, we should not sympathize with Carter just because he’s a pudgy, socially inept white boy who is struggling with life in the Clink. Being a real-life Eric Cartman doesn’t give you a pass. We should, however, sympathize with Carter because his case highlights much of what is wrong with terroristic threat laws.
Terroristic threat laws, like Texas Penal Code Section 22.07, exist in a Constitutional limbo. While the First Amendment safeguards free expression, the Supreme Court holds that certain categories of speech, such as true threats and incitement to imminent lawless action, do not enjoy First Amendment protection. The Court’s decisions in Brandenburg v. Ohio and Virginia v. Black fail to clearly guide lower courts’ analyses in cases like these. Many states other than Texas have comparable laws that have so far survived constitutional challenge.
Even if terroristic threat laws are Constitutionally permissible, they remain bad policy.
Carter’s not the first to suffer, unfortunately.
Last month, a grand jury declined to indict Cameron D’Ambrosio, an 18-year-old accused of making terroristic threats in the wake of the Boston marathon bombings. An aspiring rapper, D’Ambrosio had posted lyrics on his Facebook page that read, “F— a boston bomb wait till u see the s— I do, I’m be famous rapping, and beat every murder charge that comes across me!” D’Ambrosio had been in jail for a month when he was finally released.
In March, Olutosin Oduwole was freed six years after his arrest in July 2007 for attempting to make a terroristic threat. (Yes, attempting to make a threat.) The Southern Illinois University at Edwardsville police searched his stalled car on campus. In the car’s console, they found a note threatening a “murderous rampage” similar to what had occurred at Virginia Tech earlier that year. Oduwole, an SIUE student, claimed that the note contained a draft of rap lyrics. He was found guilty and sentenced to five years in prison. He was freed this year after a unanimous decision by an appellate panel found insufficient evidence for a conviction.
Carter is not likely to be convicted. TPC 22.07 is a specific intent crime. No evidence currently shows that Carter meant for the readers of his online comment to take him seriously, much less that he planned to actually gobble down the hearts of kindergarteners. But even if he is released immediately, Carter will have spent five months in jail. That’s a big part of the problem.
Politicians and prosecutors trumpet terroristic threat laws as tools for the swift intervention of authorities, allowing law enforcement to prevent horrendous crimes. Sure, they make things easier. Ordinarily, if someone tips off the cops that someone else was talking about committing a crime, the police investigate. They could make an arrest later, if their investigation revealed that necessity.
With terroristic threat laws, the suspicious talk itself is the crime, not just evidence of plans for one. The cops can arrest for the threat charge and investigate the possible underlying violent scheme later. Meanwhile, the accused is not simply enduring the inconvenience of a police inquiry. He is locked up. Even if he is ultimately acquitted or charges are dropped, months of lost liberty is too high a price for using gauche language or failing to understand his audience’s sensitivities. It’s too high a price when police could have investigated the old-fashioned way.
The accused could easily be most of us reading (or writing) this. Reread the opening quote from Justin Carter’s apology. “I was a smartass, sarcastic, a regular keyboard warrior, and I was dumb,” Carter wrote in that same letter. He described going online after work to “vent, play, laugh and relieve stress.”
Egads. My own apology letter today might read, “I was trying to be witty and sarcastic. I failed, and I posted on ATL anyway.” Little did I know that, there but for the grace of God, I could have soon been begging my folks to start an online petition for my release.
Justin Carter responded to a friend’s jabs on Facebook with off-color hyperbole. He allegedly followed his comment with “LOL” and “JK.” Given Texas laws against terroristic threats, though, perhaps he should have written “FML.”
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]