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Teenage League of Legends Player Jailed For Months For Facebook Joke
Kohath writes "Eighteen-year-old Justin Carter of Austin, Texas was arguing with a friend on Facebook about League of Legends back in February. After being called 'insane,' he responded with '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.' Below that, he wrote 'lol' and 'jk.' He was arrested March 27, 2013 and has been in jail since that time. A hearing to review his case is scheduled for July 1, 2013. His parents have launched a change.org petition to convince the authorities to release their son."
You cited the wrong section. This is what you should have cited: imminent lawless action. There are three parts of the test:
intent, imminence, and likelihood.
If you say "Jews should be killed", it doesn't imply imminence. If you say "Let's go put some Jews in gas chambers", it doesn't have likelihood. And if you say "It would be funny if y'all went and lynched a Jew" it wouldn't have intent.
For the Facebook post, it didn't have likelihood or any real intent (it was a joke). The imminence of it could be argued. In any case, it fails the test and his speech is protected.