When defending the liberty of unsavory characters, I usually write of my native England. Not this week, alas. In the state of Texas, a 19-year-old man named Justin Carter sits in prison, ruthlessly stripped of his freedom for making an offensive joke. After a Facebook friend with whom he played video games described him as “crazy” and “messed up in the head,” Carter replied — sarcastically, one imagines — “Oh yeah, I’m real messed up in the head, I’m going to go shoot up a school full of kids and eat their still, beating hearts.” He added “lol” and “jk” for good measure. For this he was arrested by Austin police, charged with making a “terroristic threat,” and thrown into prison. He may languish there until the start of the next decade.
Carter’s joke was witless and flippant — typical, in other words, of late-teenaged men. By no means was it criminal. Nevertheless, a woman in Canada, who inexactly described herself as a “concerned citizen,” saw from afar what Carter had written and shopped him to Texas police. Police acquiesced to her request, searching the family’s house in the process — and finding nothing. “They really want my son to go away to jail for a sarcastic comment that he made,” Jack Carter, the boy’s father, said. Apparently so: He’s been incarcerated since March without trial.
In free countries such as the United States, one is permitted to be a fool. The keystone of our virtuous departure from the damnable norms of human history is the axiom, so memorably put by Chesterton, that “to have a right to do a thing is not at all the same as to be right in doing it.” Americans may scream racial epithets, attack others’ deeply held beliefs, and communicate whatever vile and cretinous things pop into their heads. And they may do this not because they are “allowed to” by a state that grants privilege but because the state has never been granted the permission to intervene. The heirs to the constitutional settlement of the late eighteenth century are as entitled to its bounties as were its architects — idiot boys included.
In explaining to hostile parties the consequences of their positions, many of my fellow First Amendment absolutists stress that the price of maintaining the rights of those who deserve them is that silly or undesirable people will be protected by the Constitution, too. I object to this line of thinking, not only because it presumes to judge virtue, awarding our betters a claim to exclusive truth, but also because, as John Stuart Mill argued, free men must not be stripped of their right to hear what others have to say — however offensive.
Naturally, standards evolve. At one point in history, this caustic observation from comedian Richard Pryor might’ve been correct: “You can’t talk about f****g in America, people say you’re dirty, but if you talk about killing somebody, that’s cool.” Now, one suspects, the rule must be inverted. Either way, Americans enjoy unique latitude to discuss dark and queasy topics, topics that range as far afield as the killing of other human beings and the violent overthrow of the established order. It is likely that neither murder nor insurrection will ever come into conversational vogue — desirable, too, that they do not. But it is not the place of authority to judge what is and what is not acceptable, and it is certainly not the place of the state to designate casual discussion as “terrorism.”
In 1969, the Supreme Court correctly swept away the restrictive and injurious precedents that the Wilson administration had struck against constitutional liberty, and restored American freedom of speech to its rightful and unyielding norm. In the seminal Brandenburg v. Ohio, justices dispensed with vague notions such as “fighting words” in favor of the determination that one’s speech could be curtailed only in the event that it presented an “imminent and likely” threat. In practice, this recognized a right to sedition. As a rule of thumb, you cannot announce that you intend to start a revolution in the parking lot of your local Staples tomorrow at 9 a.m.; but you can call generally for the overthrow of the government. You can say that you might shoot up a school, too, and the most authorities can do in return is investigate whether you are serious.
In the petition advocating for his release, Carter’s defenders add to their case against the state by noting that “the only items seized from his home was his personal computer. No weapons of any kind were seized.” This revelation might well provide fussbudget Canadian proto-despots with their evening calm. But it is irrelevant. As a condition of their liberty, free men may own weapons while joking in good or bad taste about killing children just as they may own weapons while calling in the abstract for the toppling of the government. Sandy Hook being still fresh in the memory, one does not have to wonder for too long why Justin was singled out from the hundreds of thousands — perhaps millions — of Internet postings that threaten violence. This does not come close to excusing the Texas police. If we started rounding Americans up for making egregious comments about contemporary events, the prison system would collapse in short order.
“Justin was the kind of kid who didn’t read the newspaper,” his father told the newspapers. “He didn’t watch television. He wasn’t aware of current events. . . . These kids, they don’t realize what they’re doing. They don’t understand the implications. They don’t understand public space.” Perhaps they do not; who knows what informs the minds of strangers? Either way, I struggle to see why this matters. We do not have different laws for the ignorant than those we have for the learned. If Justin were a prodigious literary talent, second to none in his grasp of current events, would the equation change? Would we hang Mark Twain but spare Jose Canseco?
I, like John Updike, am prejudiced “toward a government whose constitution guarantees” free speech. Justin Carter, whether polite society considers that he deserves it or not, lives under such a constitution. It is the responsibility of all of us to police the government and to punish it when it violates its authority. Carter must be set free and this insidious precedent smashed to pieces. Our liberty depends upon it.
— Charles C. W. Cooke is a staff writer at National Review.