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The Difference Between Sarcasm and Threats

| July 19, 2013

The past couple of months have not been kind to nineteen-year old Comal County, Texas resident Justin Carter. In response to a gamer taunting him online during a video game, Carter sarcastically remarked that he’d shoot up a school to show how weird he was. A random gamer from Canada complained, prompting authorities to swarm Carter’s house and arrest the teenager. Despite law enforcement finding no evidence of a school shooting plot, Carter was accused of making “terroristic threats”—a third-degree felony—and indicted by a grand jury.

Since then, the troubled teen has suffered “quite a bit of abuse” according to his dad, including numerous black eyes.  His $500,000 bond seems unreasonably high, but a generous donor has secured his temporary release.

The legal question here is whether Carter was in violation of section 22.07(a)(4-6) of the Texas Penal Code, which prohibits “threat[s] to commit any offense involving violence to any person or property.” Carter’s lawyer is optimistic that no further jail time will be assessed, but it is nevertheless imperative to prevent future instances of overreach.

Current state law in this case is out of lockstep with the highest law of the land, the Constitution. Although there are absolutists and conditionalists when it comes to First Amendment speech protections, current precedent (Brandenberg v. Ohio) holds that the threat of “imminent lawless action” must preclude any state action against an individual or group. Judging by that standard, one must examine the context of Carter’s words to assess the seriousness of his comments. In order to conform to our nation’s robust promise of freedom of speech and reduce unnecessary juvenile pretrial detention, section 22.07 should recognize an exemption for speech that a reasonable person would realize is satirical.

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