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Trash Talk or True Threat?
Video Game Trash Talk or True Threat?
If you’re reading this article, there’s a good chance you know what I’m talking about. Trash talk in video games is endemic to gamer culture. It’s part of how we play the game. And sometimes, over-the-top language is part of the play. For some of my gaming friends, the trash talk is their favorite part.
Carefully crafted insults are part of how we play. It can be the gamer version of a Basketball foul or an endzone dance. We throw the other gamer off and try to distract them, get them to tilt, and disrupt their play.
We’ve all had the experience of someone coming in from outside and hearing the trash talk and being baffled by what they hear. Or we’ve played the Onyxia Wipe video for friends who had no idea why we would subject ourselves to that kind of language environment and still enjoy the game immensely.
Now imagine that person is a prosecutor. Or a judge. Or a jury of your peers. A true threat is a statement that evinces a genuine intent for physical harm to occur. Police and prosecutors will take trash talk out of context to give an incorrect impression to the judge and jury. If you’re in this situation, you need a skilled attorney who understands the context, who can challenge the prosecutor and educate people who know nothing about gamer culture.
Trash Talk On Social Media
There’s trash talk on social media too. It may be in the comments section of a post on Facebook or X. It may be in a Discord chat. The most infamous is, of course, 4chan. As has been the case throughout history, anonymity enhances the freedom to speak freely. Still, people can face penalties in these internet forums too, for comments taken out of context.
Trash Talk or True Threat: The Legal Issues
All communications are presumptively protected as free speech unless they fall within a narrow set of exceptions. One of these is the true threat exception. This can be a tricky assessment. The true threat exception is limited to genuine intents for physical harm to occur. Unfortunately, some folks may believe that a trash talker deserves criminal punishment because of how their words made them feel aside from a physical threat. But the First Amendment protects As Justice Sotpmayor noted in Counterman “First Amendment vigilance is especially important when speech is disturbing, frightening, or painful, because the undesirability of such speech will place a heavy thumb in favor of silencing it.”
Fortunately, many courts have consistently determined that a true threat finding shouldn’t rely solely on the hearer’s perceptions. Criminal prosecution must consider whether it was reasonable for the alleged victim to feel threatened.
The recent Supreme Court decision in Counterman v. Colorado further refined this standard. For several years, Counterman cyber-stalked a singer on Facebook. He left her a series of messages, including one that said, “Staying in cyber life is going to kill you.” A Colorado court convicted him of stalking, but The U.S. Supreme Court vacated the conviction on appeal due to the original court’s violation of his right to free speech.
The man was mentally incapable of understanding that his words would be received as threatening. The court further reiterated that a true threat finding must be contingent on the context and the speaker’s intent. This is in line with court standards for defamation.
Contact Us
If someone is trying to silence, punish, or prosecute you because of something you said, Mario wants to hear your story. Reach out to him at 607-351-3820. He will listen to you and determine if he can help you. If you live in another state, he can collaborate with a like-minded lawyer in your jurisdiction.