Justin Carter case: How one man's Facebook 'banter' is another's 'threat'

Teenager Justin Carter has been in custody in Texas for 4-1/2 months after posting a Facebook item that seemed to threaten a school shooting. Is this a case of due diligence by law officers, or free speech violated?

Did Justin Carter make a threat, or a sarcastic joke? That’s the question in the case of the New Braunfels, Texas, teenager arrested for a comment posted on Facebook that’s generating national attention.

Mr. Carter was arrested several months ago on a third-degree felony charge of making a “terroristic threat.” According to court documents, police allege that he posted, “I’m [expletive] in the head alright. I’ma shoot up a kindergarten/ And watch the blood of the innocent rain down/ And eat the beating heart of one of them.”

According to Carter’s family and lawyer, the comment was a sarcastic response to a comment by another Facebook poster. He was 18 at the time, and “this was banter by kids on the Internet…. He’s a gamer…. He never intended to threaten anyone, he wasn’t serious,” says Donald Flanary, a defense attorney who recently took up the case on a pro bono basis.

A tip routed to a regional intelligence center led to Carter’s arrest, Mr. Flanary says. “I can see how law enforcement can be sensitive to those kinds of comments, and I’m glad that there’s a system to catch it,” he adds. But for Carter to be jailed for months based on Facebook comments taken out of context, with bail set at $500,000 – about five times higher than many murder cases – is an injustice, he says.

This isn’t the first time a teen Facebook post has led to charges of making threats. In Massachusetts this spring, an 18-year-old was arrested for a comment referring to bombing and murder, but a grand jury determined it was in the context of rap lyrics he was writing rather than a genuine threat.

There’s no widespread trend of such cases, “but even a handful of cases where Americans lose their liberty for intemperate postings should get our attention,” says Ken Paulson, president of the First Amendment Center at the Newseum in Washington and dean of the College of Mass Communication at Middle Tennessee State University in Murfreesboro. “There are safeguards that should lead to a critical analysis of provocative speech,” he says.

In Carter’s case, Mr. Paulson says, it seems like “the entire [legal] system has overreacted to this post.”

It’s also one example of the myriad ways people are stumbling into trouble for behavior that has a wider audience on the Internet but would never get people into trouble back in the day when trash-talking simply took place in the living room as people played a violent video game, or when drunkenness was witnessed only by a few friends at a party.

Societally, people may want to steer fellow citizens away from using violent imagery in their online comments, but when it comes to police involvement, “it’s critical that we ensure their constitutional rights are protected, and free speech is at the core of that,” Paulson says.

A hearing to reconsider Carter’s bail is set for July 16.

Carter’s father tells NPR that his son has been traumatized in jail – seriously assaulted and put in solitary confinement because he’s been depressed. Attorney Flanary says that Carter could eventually pursue a federal civil rights lawsuit for being wrongfully arrested and detained.

The legal process has failed at several points along the way, Flanary says. Carter was arrested before police confirmed that the Facebook post genuinely came from his computer – a step that’s usually routine before even suspected child pornographers are arrested, he says. Police searched his house and found no guns or other threatening material. And it appears that they didn’t look at the context of the Facebook post before arresting him.

Flanary says that prosecutors have since subpoenaed that information from Facebook but haven’t produced anything along those lines yet.

Flanary also says the small screenshot originally sent by the tipster includes a negative comment against Carter, and that context was not included in the arrest warrant and indictment materials.

Context is important because if Carter’s post was provoked by another’s comment and was followed up by an acronym such as JK – for “just kidding” – as his father has said in an interview with National Public Radio -- then on the face of it, it would clearly not be a threat, Paulson of the First Amendment Center says.

Flanary speculates that one reason Carter has been jailed is that “no individual agency wants to be the one that says, ‘It’s not a threat, let it go,’ because then if something happens … they have to explain why they didn’t do more.”

Comal County (Texas) District Attorney Jennifer Tharp would not comment on the details of a pending case but said in a press release that the charge carries a potential penalty of two to 10 years in prison and a fine of up to $10,000. A defendant never previously convicted of a felony may be eligible for “deferred adjudication community supervision,” which, if served successfully, would not result in a criminal record.

Ever since the mass shooting at Columbine High School in Colorado in 1999, many states have bolstered laws to make it clear that threats against schools will be taken seriously and prosecuted, says Ronald Stephens, executive director of the National School Safety Center in Westlake Village, Calif. Indeed, tips from students about suspicious statements by their peers have prevented school attacks in recent years.

But threat assessment teams that include educators, law enforcement, and mental health experts should be in place to determine when someone’s comments or actions constitute a real threat, Mr. Stephens says.

“We rely on those enforcing the laws to use good, solid, fair, consistent judgment, and that seems to be the question in this [Carter] case – whether it’s been fair and reasonable,” Stephens says. If prosecutors can’t at some point “produce their threat assessment process, they’ve got a real problem,” he says.