The initial shock and outrage among gamers has ebbed slightly, so it’s a good time to look at this issue a little bit. I’ll start with one observation: the facts claimed by the news media I’ve seen are really weird. Everyone tells the story a little bit differently, but as best as I can piece it together, Carter got into an argument in a League of Legends game, then kept raging on Facebook afterward. I’ve raged a little bit in League games in my day (I take it for granted that if you’ve played the game through to level 30, you’ve raged in a game at some point). But to extend the in-game argument to Facebook suggests two abnormalities: 1) next-level rage, and 2) that you were Facebook friends with the person at whom you were raging.
I’ll set that puzzle of the facts aside because I want to look at this as an example of a generation-gap manifest in law.
People rage and troll in online games. I would be surprised to find more than maybe 10 of the roughly 3,200 US Federal Judges really understood online gaming culture, much less participated in it. That’s not an unfair claim: being a judge requires looking at a lot of matters in which you don’t have personal experience. The claims that can be (and are) made under the law are far too broad for any human to have serious experience in every potential area of law or subculture that it might affect. Never the less, many areas of law involve tests that ask about the “custom and practice” of the relevant discipline. Contract law, and sales in particular, will often ask whether the conduct and contracting between parties is normal for that industry. Patent law often asks experts in a field whether a patent claim is nonobvious or novel. The point here is that there is legal precedent for fitting a legal claim into a specific context.
The second point is that there is a long tradition of internet culture that has embraced behavior that would be downright tortious outside of cyberspace. Penny Arcade touches on this in the second panel of this strip, which one author said was “only slightly exaggerated.” I am told to kill myself almost every week that I play Ranked Games in League of Legends. I have been wished a variety of cancers and terrible illnesses, have been threatened with some very creative forms of rape, and have been targeted with some threats that defy the laws of physics are they are currently understood. The culture of this particular game might be summed up well by the YouTube entertainer “Dunkey,” whose commentary in verse on Justin Carter’s case was this: “Dude going to jail for what he said/ Man, FBI must want me dead.”
Notwithstanding the online culture of trolling and raging and the legal precedent for considering the custom and practice to place a claim into its context, there are also legal precedents for taking threats legally seriously. Most news about this story has pointed to the fact that the comments of concern were specifically about shooting up a kindergarten classroom, and these comments were made some two months after the most horrific elementary school shooting in US history (arguably barring the Bath School Disaster, which employed explosives and was not so widely covered by broadcast news but was still a terrible tragedy).
My interpretation of this case is a clash of culture and law. This is an interesting clash because of the way that (in the US) culture and law shape one another over time, and it is usually the law that responds to the changes in culture. The added twist is that culture itself is clashing against the law from two sides: an internet culture of obscene threats and intense trolling and a newsmedia culture fueled by increasing violence and terrorism. However the law ultimately responds to the kind of online “conversation” (I can’t seriously call it that, of course) that is common in gaming, a full and responsible response will have to balance the non-seriousness of “things irritated 17 and 19 year olds are prone to say in their own bedrooms” with the very serious “reality that people are slaughtering people wholesale in offices, schools, churches, movie theaters, and shopping malls every day.”
The full implications of everything about this clash of 2 cultures and law should be deeply disturbing to us. One interesting result of this case has been California’s new “Undo Button” law for minors to remove their uploads from the internet. Text is here.