A Little Legal Music

This dev blog has been primarily focused on two different items: RPG Maker Tutorials and updates about Vidar. But today, and probably today only, I’d like to turn to a brief discussion of the law. Last week, the Supreme Court heard oral argument in Elonis, in which an individual made some pretty aggressively heinous statements in several Facebook posts. And because we’re talking about the First Amendment and whether to censor certain speech based on its content, we need to post the content rather than assigning it talismanic significance. Here is an example post that Elonis made on Facebook, concerning his ex-wife.

There’s one way to love ya but a thousand ways to kill ya,
And I’m not gonna rest until your body is a mess,
Soaked in blood and dying from all the little cuts,
Hurry up and die bitch so I can bust this nut,
All over your corpse from atop your shallow grave,
I used to be a nice guy, then you became a slut,
I guess it’s not your fault you liked your daddy raped you,
So hurry up and die, bitch, so I can forgive you

There are several other similar posts, but you get the idea. Elonis was convicted under 18 USC 875 which provides for imprisonment of no more than 5 years if a person transmits a threat to injure another.

Ok, wait, why are we talking about this on The Iron Shoe? Because in some ways, it’s gaming news. Polygon has not only written an article on the matter, they’ve already been criticized by GamerGaters for the article. There are a lot of gamers who are very protective of their right to trash-talk (deservedly so), and there are a lot of Call of Duty players concerned about their ability to convey just how much they’ve slept with their opponent’s mom (maybe a little less deservedly). At the risk of offending everyone, this is what happens when non-lawyers talk about the law – details get lost, and people lose their damn minds. So let’s set the record straight:

  1. This case isn’t about whether a post on Facebook is protected under the First Amendment. The Supreme Court has never suggested that it would treat Facebook different than any other speech – speech on a sidewalk, speech in a book, speech through art, speech on TV, speech in any other corner of the Internet. And this case categorically won’t change that. Regardless of how the Supreme Court decides this case, the question of “is shit talking on the Internet still a First Amendment right?” remains untouched.
  2. This case is about context, but not the way Polygon suggests. Polygon is correct that this case is about context, but not in the way presented. It’s far less about where Facebook lands in a forum analysis (that is, whether Facebook is more like a sidewalk or more like a face to face communication). It is entirely about two possible tests – the “objective” test or the “subjective” test.

The Supreme Court long ago decided that so-called “true threats” are not protected under the First Amendment, full stop. But the question remains, what on earth does “true threat” mean? There are two schools of thought. Some courts apply an Objective Test, asking whether a reasonable person who viewed the threat “in context” would determine that the threat was a true one (and not, say, hyperbole). Other courts apply a Subjective Test, asking whether the speaker him or herself intended to be taken seriously. Note that the Subjective Test isn’t about whether the speaker intended to carry out his threat – just whether, in his mind, he was making a serious threat or he was just joking with ya’.

This is the question before the Supreme Court – which test is better. It is important. It will absolutely have an impact on gaming communications, particularly in light of SWATTING issues, League of Legends threats, and lets not forget threats made in connection with this summer’s GamerGate. But realize that the Supreme Court’s case has nothing to do with ‘online spaces being treated as public spaces’ to paraphrase @Xenomorphica suggested on twitter.

The Objective Test and the GamerGate Narrative

One of the interesting threads throughout the summer has been the interaction of a previously niche-culture with the “mainstream.’ It’s been aggressively described as the deterioration of gaming culture by some, but at a very minimum, when the New York Times is covering inside baseball, it’s no longer inside baseball. Whether “gamers” as a subculture ever existed, currently exist, are dying off, or are stronger than ever, the GamerGate hashtag is undoubtedly associated with the belief that gamer “culture” is unique and has to be viewed through a particular, context-sensitive lens.

If the Supreme Court ultimately adopts the objective test, then comments like “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” posted in a LoL game will be held to a ‘reasonable person’ standard. That is, some independent, hypothetical third-party with all of the context will make a judgment call as to whether or not the threat was a joke. That hypothetical, Jesus-like reasonable person will probably not be a gamer. Which means that under the objective test, threats posted in online games will be assessed by those “outside” the community.

Whether that’s a good or bad thing I leave for you to decide – my suspicion is that it boils down to whether you believe there is a gamer culture that should self-police and have its fun while doing so (or that non-gamers don’t “get it”), or you believe that the culture surrounding video games should be held to non-gaming community standards.

Popehat has some phenomenal analysis of True Threats in gaming and online contexts. You should absolutely read them if you’re even a little bit curious about this evolving area of the law.


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