Tuesday, September 17, 2013
The justices are weighing whether to review the prosecution of an Iraq war veteran handed 18 months (.pdf) in prison for singing in a 2010 YouTube video that he would kill a local Tennessee judge if the judge did not grant him visitation rights to his young daughter.
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Rothfeld maintains that the federal threats law — which dates to a 1932 statute making extortion illegal and applies to the offline world as well — is unconstitutional. A felony conviction, he said, is based on whether a “reasonable person” would believe the threatening statement was made with the intent to inflict bodily injury and was uttered to achieve some goal through intimidation.
Rothfeld argues that what should matter is whether the person making the threat was serious, not whether a “reasonable person” would conclude he or she was.