A DISCUSSION OF LAW AND JOURNALISM

Dangerous Threat or Politically Challenged?

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By Matthew Catania

“1 down, 534 to go…It is absolutely, absolutely unacceptable to shoot ‘indiscriminately.’  The “1” was Gabrielle Giffords; the ‘534’ were the as-yet unharmed members of Congress.  While most of the nation was shocked and grieving over the January 8 Tucson massacre , Travis Corcoran of Arlington, Massachusetts, the owner of the online comic book store Heavy Ink, took to his blog post. “Target only politicians and their staff,” he continued, “and leave regular citizens alone. Please!” (Mr. Corcoran later blogged that his offensive post was not meant to be taken seriously.)

Immediately, comic book writers denounced Mr. Corcoran and urged their fans to boycott his store.   On January 10, Laura Hudson, the Editor-in-Chief of ComicsAlliance, whose bio says “her whole life is comics,” wrote a scathing article about Mr. Corcoran’s blog posts.  Her piece became one of the most-commented on in ComicsAlliance’s history.

One of the readers of that piece was Captain Robert Bongiorno of the Arlington Police.  And on January 18, police confiscated eleven firearms and ammunition from Mr. Corcoran’s home, and suspended his firearms license. Although he has not been charged with any crime, the local police and the FBI are currently investigating whether Mr. Corcoran poses a threat to members of Congress. Mr. Corcoran’s blog and his online store have subsequently disappeared from the web (it’s unclear whether Mr. Corcoran redacted his own blog or whether law enforcement had it removed pending his investigation).

The police’s escalation of the situation has sparked a firestorm of controversy around Mr. Corcoran. Some believe he’s a dangerous nutter who shouldn’t be allowed anywhere near guns. Others think that his Second Amendment rights to own guns have been unfairly violated merely because he was exercising his First Amendment rights to freedom of expression.  LASIS will weigh both sides.

Under Massachusetts law, the state can order the suspension and surrender of a citizen’s firearms license, firearms identification card, firearms, and ammunition of a resident who “demonstrates a substantial likelihood of immediate danger of abuse.” Although it explicitly deems criminal ties to be unsuitable for gun owners, Massachusetts’s “suitability” requirement gives police expansive discretion in denying residents licenses. The length of the suspension and whether Mr. Corcoran’s gun rights will be revoked altogether will depend on a determination by the state’s licensing authority on his suitability to be a gun owner.  Mr. Corcoran can appeal the licensing authority’s decision within ninety days.

Because Mr. Corcoran has no criminal record and has presumably complied with other state firearms regulations, his ability to have his firearms license reinstated will depend on whether his blog post is deemed to have been a true threat. The Supreme Court has found speech that instigates “immediate lawless action” to be unprotected by the First Amendment. Context is crucial since speech that is hyperbole or makes a political statement is protected. Although the First Amendment extends to speech over the Internet, courts have often found that online threats are unprotected. It is a federal crime to transmit threats over the Internet.

The leading case on Internet threats, United States v. Baker, involved a University of Michigan student discussing kidnapping and killing women via email with a friend in Ontario. The standard for a true threat was defined as an “unequivocal, unconditional and specific expression of intention immediately to inflict injury.”  The specificity requirement refers to both plans and targets.  No specific women were targeted in this communication. The court acquitted the defendant because it found the email expressed the student’s fantasy rather than a definite plan to inflict injury. Recent cases have gone even further, holding that online postings that facilitate crimes are unprotected.

Under the Baker test, Mr. Corcoran’s blog does not appear to have been a true threat. He did not express a plan to murder anyone that could be immediately be carried out by either him or his readers. His statement was not unequivocal, since much of it was an admonition against harming civilians. His statements condoning assassination were not specific enough to be a useful plan for other likeminded individuals. His post also referenced “politicians in general and ‘their staff” which significantly expands the number of potential targets. The more targets implicated, the less feasible a plan against all of them is. Mr. Corcoran did not provide any additional information like addresses, schedules, or building schematics that could aid would-be assassins in carrying out their schemes.  In short, there was no plan outlined in the post that a deranged reader could follow as a recipe for a successful crime.

If it were posted somewhere where political radicals were known to frequent, his post could be more reasonably viewed as a threat; in that context, such a post could be seen as an incitement to illegal action. Instead his rant was posted on his personal blog that linked to his comic book store’s Website. While some comic book fans could well be violent extremists, a significant overlap between the groups has not been documented. Indeed, as noted earlier, the comic book community overwhelmingly denounced Mr. Corcoran. Even readers with similar political leanings thought he was making a joke in extremely poor taste rather than issuing a call to arms.

If Mr. Corcoran’s blog wasn’t an illegal threat, then Massachusetts should reinstate his firearms license. A recent case in Iowa held that police can not deny gun permits based solely on citizens’ political beliefs.  Voicing unpopular opinions is an invalid ground for finding Mr. Corcoran an unsuitable gun owner.

He should not be penalized for expressing his views, no matter how repugnant they are.

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One Response

  1. Severus Snape says:

    Bio of this guy says he is a student. Hard to believe. I go to BU Law school and I’m a 2L and I WISH I COULD WRITE LIKE THIS!

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