Monday marked the first pre-trial hearing in the case of Justin Carter, the Texas 19-year-old accused of making "terroristic threats" over Facebook. Attorney Donald Flanary III, who represents Carter, told msnbc he would seek to have the case dismissed on the ground that Carter's remarks were protected speech and do not constitute a real threat.
"We feel pretty good about our case, but it's going to take some time, and that's fine," said Flanary.
Carter was first arrested in February after he got in an argument with fellow gamers on Facebook and posted a comment saying, "I’m f—ed in the head alright. I think I’ma shoot up a kindergarten and watch the blood of the innocent rain down and eat the beating heart of one of them.” Although Carter's parents and attorney insist that the comment was a sarcastic response to another Facebook user, a Texan grand jury has indicted the teenager on charges related to terrorism.
The Comal County District Attorney's office, which represents the prosecution, is not commenting on the proceedings until they have concluded. However, a July 3 press release from the district attorney noted that the charges against Carter may carry a punishment of up to 10 years in prison.
Flanary says the indictment "materially misrepresents" Carter's offending Facebook post, because it omits the part of the comment where he calls himself "f—ed in the head."
"Anyone who understands the English language would know it's a sarcastic comment and not really intended to threaten anyone," said Flanary. "Either the grand jury chose to leave out this important information, or maybe the prosecutor didn't tell anyone."
At Monday's pre-trial hearing, he filed a motion of discovery in an attempt to examine the full transcripts from the grand jury. However, he was told that grand jury proceedings were not recorded. In a separate motion, Flanary also requested an examination of Carter's computer, so as to get a better sense of the context in which he posted the alleged threat.
"It's kind of a first look at what the state can expect from us as far as our claims and our defenses and our assertions," he told msnbc. "Primarily it's an assertion of a First Amendment challenge as applied to him and a facial challenge to the statute [under which he was indicted]." As precedent, Flanary pointed to a 2011 case in which the ninth circuit ruled that a California man's alleged online threats against President Obama were protected speech and did not represent a serious danger.
The defense's motion to dismiss the charges will be filed at the next pre-trial hearing, on Sept. 23. If the motion is denied, then Flanary vowed he will appeal to a higher court.
"We'll go as far as we have to go," he said. "To the Supreme Court, if necessary." If subsequent appeals fail, then Carter will face a trial by jury.
Carter has been out of jail since July 11, when an anonymous donor provided his family with the full $500,000 required for his bail. Flanary said Carter was "doing a whole lot better" since the days when he was in solitary confinement and on suicide watch.
"It's hard to get on with his life because he's got this hanging over his head, but he's certainly enjoying his freedom," he said.