Justice

Why Is It Okay To Joke About Genocide, But Not About Killing Cops?

Police-murder satire would seem like the kind of thing that should also enjoy First Amendment protection. No?

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It took me a while to find a picture of PewDiePie without his headset on. (Photo courtesy of Getty)

It took me a while to find a picture of PewDiePie without his headset on. (Photo courtesy of Getty)

As much as everyone hates “fake news” now, I worry about the government stepping in and holding people to account for the lies and hoaxes that they spread online. I mean, we’ve seen how effortlessly the white supremacists and their president have co-opted the term “fake news” already, mere months after the mainstream media learned that “fake news” was a thing. It just gives the government too much power over private speech, and we should all now know that we can’t always trust the government to be in the hands of sane, credible people.

And that’s my backdoor defense for the guy who went on Facebook to “joke” about murdering cops. Please note: even I would not go on Facebook to talk about killing cops. Joking about killing cops, to say nothing of actually killing cops, seems like a poor way to deal with violent and racist law enforcement. We don’t need to get into a shooting war with the police, we need to hold the police accountable for shooting people.

That said, we can’t live in a world where “joking” about killing Jews and ethnic minorities is a good way to get on the Bill Maher show, while joking about killing police officers lands you in jail. Either it’s all okay, or none of it’s okay. Yes, I’m sure I’ve heard some asshole white person say that before to justify denigrating minorities. Under that standard, police-murder satire would seem like the kind of thing that should also enjoy First Amendment protection.

Judge Richard Posner disagrees. The case is United States of America v. Samuel L. Bradbury. Samuel Bradbury went on Facebook and claimed to lead some kind of group that was going to kill police officers and blow up a courthouse. Bradbury deleted the post after it was up for half an hour, but someone took a screenshot and sent it law enforcement. They raided Bradbury’s house, found thermite, and Bradbury was charged, convicted, and sentenced to 41 months in prison.

Bradbury now claims he was “joking.” He appealed to the 7th Circuit.

Here’s the ABA Journal on Posner’s decision:

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In his opinion for the court, Judge Richard Posner said the jury instructions were adequate. “To make a threat, however,” Posner wrote, “is both intentional and malicious —intentional because deliberate and malicious because calculated to inspire fear and provoke a possibly costly response— even if the threatener doesn’t intend to carry out the threat.”

“Most hoaxes are harmless,” Posner said. “But a hoax based on a threat of harm is criminalized by [the federal law], as explained by the district judge, even if the harm that ensues is fright rather than physical injuries.”

It’s an entirely reasonable standard, so long as you trust Richard Posner (and courts in general) to fairly know the difference between a “harmless” hoax and ones “based on a threat of harm.”

I just don’t know that I have that kind of faith in the justice system. And I know I don’t have that kind of faith in law enforcement. There are a lot of people running around here “hoaxing” with the threat of harm. Are we doing anything to round those people up? Or are we only going after the people who threaten to harm cops and laughing off the people who threaten to harm Jews?

Put another way: did anybody raid PewDiePie’s home looking for thermite? Is anybody doing anything about his supporters who are apparently targeting journalists now?

The “I was just joking” defense seems to work perfectly well for white people who threaten minorities, but not for black people who threaten the police.

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As usual, I don’t think white people should be treated as poorly as black people, I just think black people should be eligible for the same protections so often given to whites.

7th Circuit affirms conviction of man who threatened to blow up courthouse on social media [Indiana Lawyer]
Posner opinion upholds conviction for false Facebook threat [ABA Journal]

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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