Subjective Intent Research Articles

『說文解字』構件 ‘目’의 構意 연구

Chinese characters are ideograms, formed based on their meanings. The concept of 'construction of meaning' (構意) in Chinese characters refers to the semantic information encapsulated in their forms, representing the subjective intent of the character's creator. In other words, the 'construction of meaning' is the semantic information that undergoes cognitive processing to be encapsulated in a visual form. Therefore, by studying the 'construction of meaning' of the components (構件) in Chinese characters, we can examine the process through which Chinese characters develop their unique semantic systems. This paper selects the 'Shuowen Jiezi', which interprets the 'construction of meaning' of the character forms in Shuowen based on the principle of 'unity of form and meaning', as its research material. To analyze the 'construction of meaning' of the component '目', this study categorized the character forms that include '目' into six types based on their semantic categories of actual meaning. As a result, it was found that the fundamental 'construction of meaning' of the component '目' is 'human eye', and the derived meaning, influenced by this fundamental concept, is 'window of the mind.

Saying something with nothing: Refusal, avoidance and resistance in participant non-response

The relational processes of dialogue in biographical storytelling extend beyond manifest tales. Untold stories of unlived experience are also composed with an audience in mind and performed as communicative acts. This paper considers how and why research participants in a Mass Observation Archive study declined to respond to a life-writing task. Drawing on the sociology of nothing, we argue that their patterns of non-response were motivated by subjective intent and constitute meaningful social action. Despite having little or nothing to say about the substantive content of the topic, these participants told us plenty about how they felt about the challenging methodological process. In their accounts, we identified three modes of disengagement: commissive refusal, omissive avoidance and ambivalent resistance. Respectively, these involved consciously dismissing the task with reference to morals and values; surface amenability masking an evasion of deeper engagement; and confused, uncertain vacillation between approach and retreat. We explore the intrapsychic and interpersonal relational dynamics at play in each of these narrative modes and consider the authorial power of saying ‘no’.

论偷税的主观故意

论偷税的主观故意

Information Manipulation of Securities Market Crimes Revisited: From the Perspective of the Amendment XI to the Criminal Law

In 2020, the Amendment XI to the Criminal Law and the Latest Judicial Interpretation in 2019 by the Supreme Court and Supreme Procuratorate have made information manipulation a key target of regulation. Information manipulation is a new type of securities manipulation crime in which the perpetrator relies on the abuse of information advantage to induce investors to make decisions in order to indirectly influence the securities market. This behavior has some similarities with traditional trading manipulation, but there are still significant differences in the manipulation methods and the infringement of legal interests, and it is necessary to clarify the rules of its judicial application with typical cases. In addition, it is difficult to judge the subjective intent of information manipulation. Due to the complexity of the act, the previous path of subjective intentional determination has been difficult to apply, so it is necessary to try to establish the judicial presumption path of “objective proof of subjective”. This path is achieved by considering three elements: objective behavior, purposeful intent and complementary factors, which are used to judge the subjective intent of information manipulation.

The Belt and Road Initiative (BRI) on the “<i>Stress-Test</i>” of the Corporate Criminal Liability in Europe

There are different levels of involvement a company may undertake in its international activity, from low efforts trade and indirect participation partnering with local importers and distributors to high commitment FDI (Foreign Direct Investment). In general, any foreign enterprise operating overseas intuitively knows they must comply with local regulations. However, not all businesses working from abroad know that, regardless the commitment level chosen, companies and associations may be held directly liable for crimes of subjective intent committed on behalf or for the benefit of a company by a class of persons who have operational authority and are therefore liable on behalf of the company1. We explore the case of Europe as a target market as its legislatures set landmark principles on the topic. China expeditious international business and BRI plans are seen as an opportunity for increasing connectivity among countries. However, the same time, it may go throughout potential hassles. Recent scandals of alleged fraud on COVID-19 masks supplied to Italy might be seen as a red flag as a fraudulent intermediary may not exclude an unaware manufacturing company responsibility. This may advise Chinese as well as any foreign business to maximize efforts to structure themselves properly while growing business overseas.

What criteria are used in the investigation of alleged cases of research misconduct?

ABSTRACT Research misconduct is a global concern. Considerable research has been devoted to guidance documents, but little attention has been paid to the empirical investigation of how (alleged) cases of research misconduct are addressed in real-life and which criteria are used to qualify a case as misconduct. Therefore, we performed a content analysis of 169 closed misconduct reports between 2007 and 2017 from Denmark, the Netherlands and Belgium, representing three different types of governance of research misconduct. This study showed that when considering a case of (alleged) misconduct investigating committees assess 1) the objective evidence of research misconduct, 2) the subjective intent of the person subject to investigations, and 3) case specific circumstances. We found that research misconduct was established in 15% (9/61) of cases in Denmark; 16% (13/82) in the Netherlands and 38% (10/26) in Belgium. 57% (35/61) of cases in Denmark, 49% (40/82) in the Netherlands, and 12% (3/26) in Belgium were deemed outside of the scope of the investigating committee. Our analysis improves the understanding of how investigations of (alleged) misconduct are handled by the investigating committees in Europe.

Interpreting merger clauses in contracts governed by the CISG: delineating the scope for the use of extrinsic evidence

Abstract Under Article 8(3) of the United Nations Convention on Contracts for the International Sale of Goods (CISG), parties’ statements, prior negotiations and other external circumstances may be used to assess the presence of subjective or objective intent that can, in turn, be used to interpret contractual terms in international sales contracts governed by the CISG. However, parties to the contract can, through the adoption of an ‘entire agreement’ or ‘merger’ clause, opt out of this rule under Article 8(3) and restrict these interpretative tools in any manner as they see fit, depending on the requirements of their contract. Since the CISG does not explicitly address merger clauses and their effects, the CISG Advisory Council, in its Opinion no. 3, has provided a test to determine how the scope of a merger clause is to be determined. However, this test presents certain conceptual and practical limitations that render it inadequate for use in international commercial contracts. This article aims to analyse this test and the methods that have been used to interpret merger clauses under other uniform legal instruments and cases in common law jurisdictions. On this basis, the article proposes a test that attempts to fully capture the conceptual intent behind including merger clauses while ensuring that the parties are in the driver’s seat while determining their scope and effect.

Analysis on Criminal Governance of Bitcoin-related Corruption Cases

Bitcoin is extremely easy to be used in corruption cases due to its pseudonym, easy circulation, easy cross-border and other characteristics. As a decentralized electronic account book, the circulation of regulatory funds is jointly confirmed by each node in the bitcoin network, which can ensure the authenticity of the criminal evidence and is not easy to be lost or damaged. It provides great convenience for evidence collection in bitcoin corruption cases. However, there are also shackles in criminal governance, such as how to prove the subjective intent of the bribe takers, the impact of fluctuations in market value on the identification of the case and, most importantly, how to effectively recover stolen goods across borders. Therefore, the difficulty of bitcoin-related cases does not lie in the “anonymity” that some scholars believe, but lies in the determination of subjective intent, the determination of the amount of the crime and the international judicial assistance in recovering the stolen money.

Human Shielding, Subjective Intent, and Harm to the Enemy

Abstract The weaker party in asymmetrical conflicts often attempts to protect itself from attack in a fashion prohibited by international law, particularly by using human shields. This article examines whether the traditional characterization of shielding based on subjective intent (the voluntary or involuntary nature of shielding) has any legal consequence and if so, how subjective intent can result in a change of status under international humanitarian law. This article argues that protective status cannot be altered solely through the intent of protected persons. In light of a careful analysis of treaty law, the author proposes a new understanding of the threshold of harm requirement of direct participation in hostilities and suggests that all human shields should be considered persons directly participating in hostilities, even when they do not possess a legally relevant will. Consequently, this article calls for an equal treatment of human shields due to their status as direct participants in hostilities. The article also calls for clarification of law by states on this issue, for there are inherent tensions within the law of armed conflict between the applicable law and state policies, in light of the relevant legal norms regulating the consequences of human shielding.

A study on the food fraud of national food safety and sample inspection of China

National food safety and sample inspection is important for the discovery of food safety problems in China. Due to increases in sample quantity since 2014, many food fraud (FF) problems, such as lean meat essence and malachite green added, have been identified through sample inspections. To gain insights into the current situation of FF, we studied failed samples involved FF identified through sample inspection from 2014 to July 2018. The regional distribution, food categories, food sampling sites, FF types and adulterated substances of these samples were analyzed. Unlike many studies, the definition of FF in this study focused on the intrinsic state of the food rather than the subjective intent of the behavior. Unintentional FF might occur due to lack of knowledge, facilities or resources. The results showed the following: 1) of the 26,708 batches of failed samples, 17.98% involved FF; 2) the failed samples that involved FF were sampled and produced in more than 30 provinces, and Hubei, Shandong and Sichuan were the top three providences; 3) the failed samples involving FF were mainly found in circulation links, which accounted for 63.99% of the failed samples; and 4) processed foods exhibited the highest rate of failed samples involving FF. The subcategories of food involving FF mainly included (i) alcohol, (ii) aquatic products, (iii) eggs, (iv) processed aquatic products, and (v) pastries, which accounted for 17.91%, 13.47%, 5.46%, 5.19%, and 5.12% of failed samples involving FF, respectively. 5) In addition, artificial enhancement was identified as the major FF type, accounting for 99.79% of failed samples involving FF. 6) Food additives and banned veterinary drugs were the major adulterated substances, accounting for 87.79% of all adulterations in failed samples involving FF. The results of this study might not be completely consistent with the actual situation of FF because sample inspection is limited by the current test items and sampling range. The results of this study are helpful for understanding the current situation and characteristics of FF, updating the FF database, and providing a reference for the prevention and control of FF in China.

Wittgenstein’s Language-Games and Gödel’s Incompleteness Theorems As the Foundation of Law

Incompleteness specifically refers to the fact that given any system of symbols, there will always be questions that can be formulated in that system that cannot be answered using just the symbols of that system. An example would be that if a person had a box of objects that person was holding, and an interrogator asked to show the objects in the box which cannot be shown. That would be a paradoxical question with no possible answer. Those sorts of questions can always be formulated, and this shows that there are some propositions that will be unresolvable no matter what the premises are of a system. So, if one wanted to judge an axiomatic system — as David Hilbert did at the turn of the last century — by whether it could have an answer for any question one could ask of it, then one will not be able to make that judgement of some system being more thoroughly 'complete' (able to answer questions asked of it) relative to another. Can, this, then can be applied to law and moral judgements? If one perceives law or morality as a propositional system then, yes, it would be applicable to moral judgements. Many pragmatists do not perceive law as such a propositional system, though. Some of the quotes I have collected refer to such pragmatists with that different approach. Morality cannot be approved and everything is subjective intent including law. So, in the same way that in the early 1900s Bertrand Russell’s attempts with mathematics were approved futile in Principia Mathematica. Are the philosophical foundations of law proved futile? How is Godel's incompleteness theorem as being a problem for morals? Nobody has true premises to go from? Therefore — it can be said — all our conclusions are subjective. Is this accurate?

Perceived user preferences and usability evaluation of mainstream wearable devices for health monitoring.

BackgroundThere are many problems with fitness trackers, such as device usability, which limit their large-scale application, and relevant studies are limited in terms of their sample size and evaluation methods. The purpose of the study was to evaluate the perceived usability of various mainstream fitness trackers on the market, and to learn about user feedback on feature preferences for each device.MethodsTrial use of seven mainstream fitness trackers (two smart watches and five smart wristbands) followed by a survey study were applied. The questionnaire was specifically developed for this study, which included two parts (user preferences and device usability in five dimensions). We recruited users to test the devices for at least 30 days and asked experienced users to provide feedback in order to evaluate each device, including the rating and user preference of each device.ResultsWe received 388 valid questionnaires, in which users rated their responses on a five-point Likert scale. (1) User preference: the average user satisfaction was 3.50–3.86 (points), and the rating for willingness to buy averaged between 3.36 and 3.59. More users were willing to wear (58.3–81.3%) and purchase (56.8–83.0%) the devices than were not. The top three general feature preferences were daily activity tracking, heart health monitoring, and professional fitness tracking. The top three health-related feature preferences were heart rate monitoring, daily pedometer, and professional fitness tracking. (2) Usability evaluation: product design was rated from 3.57 to 4.00; durability, 3.63–4.26; ease of use, 3.70–3.90; added features, 3.30–3.83; and user-rated accuracy, 3.44–3.78. A significant difference was observed in the rating of product design and durability among the different devices (p < 0.05) score.ConclusionsUsers generally had positive subjective intent regarding fitness trackers but were less satisfied with their cost effectiveness. The users preferred health related features such as heart health monitoring, and professional fitness tracking. The rating of most of the current mainstream fitness trackers was fair with some significant differences among the devices. Thus, further improvement is needed.

The Role of the Subjective Element in Tax Abuse and Aggressive Tax Planning

This article aims to examine the role of the subjective element in how certain transactions should be taxed according to the international tax system in cases of tax abuse and aggressive tax planning (ATP). This article also analyses the nature and the different scope of the taxpayer’s subjective intent and: (i) the bona fide commercial reasons; (ii) the result of the transaction in terms of reduction (or elimination) of tax; and (iii) other possible outcomes that the taxpayer desired. In particular, this paper examines the meanings (and the weight accorded thereto) of the different terms of “intention”, “purpose”, “motive”, “object” and “aim”, as currently used by soft law instruments in international taxation (specifically by the OECD in the BEPS Final Reports and by the European Commission). The question is whether these terms are synonymous or if they actually have separate and distinct meanings in identifying the subject element in abusive practices and in ATP schemes. Since the taxpayer’s intention is subjective in nature and is determined by factors that vary according to the individual case, this article attempts to identify the objective elements that both the OECD and EU law consider in finding abusive practices or ATP schemes. In this regard, this article also highlights the importance of evidence to prove the subjective element behind the arrangement or transaction undertaken.

Smart use of smart weapons: jail officer liability for the inappropriate use of tasers and stun guns on pretrial detainees

The US Supreme Court in Kingsley v. Hendrickson (2015) ruled that the use of a taser on a pretrial detainee for not following verbal commands, when the subject was not posing a threat to the security and order of the jail, was objectively unreasonable, unrelated to legitimate penological needs, and that the subjective intent of the officer was not to be taken into consideration. This is a major development in prison law as the US Supreme Court specifically addresses the issue of excessive use of force on pretrial detainees, who are distinct from prison inmates. Here, the objective reasonableness standard used in Graham v. Connor (1989) for excessive use of force by the police was applied to pretrial detainees instead of the Eighth Amendment’s cruel and unusual punishment clause, thus clearly distinguishing pretrial detainees from those already convicted of crimes. Besides this decision, this paper looks at 10 Federal Circuit Court and US District Court cases involving the use of tasers and stun guns by jail officials on pretrial detainees and concludes that more emphasis on the use-of-force continuum or model, during jail officer training would go a long way in guiding in the appropriate use of tasers and stun guns, an intermediate and not an insignificant level of force, in keeping with the US Supreme Court ruling in Kingsley v. Hendrickson (2015).

Patent Exclusions and Antitrust after Therasense

A patent may be held invalid if it was obtained by “inequitable conduct” before the PTO during the process of patent prosecution. In its Therasense decision the Federal Circuit imposed severe requirements against those attempting to defend against a patent on the basis of inequitable conduct, insisting that inequitable conduct be measured essentially by a subjective test. Objective “reasonable person” tests such as negligence or even gross negligence will not suffice. By contrast, the Supreme Court has insisted that the conduct giving rise to a wrongful infringement action violating the antitrust laws be initially based on an objective test – whether a reasonable person knowing what he knew would have brought this suit under these circumstances. Only after passing this objective screen may an antitrust claimant seek to determine any subjective intent that may be needed for an antitrust claim.The principal distinction between Therasense and Walker Process antitrust complaints based on improper patent infringement actions pertains to the time of evaluation. “Inequitable conduct” generally refers to actions and state of mind (under Therasense) that occur during the patent prosecution process. By contrast, Walker Process necessarily refers to actions and state of mind at the time a patent infringement action is filed or the patent holder engages in other exclusionary conduct, and this may be many years after issuance. This has several implications.First, there could be inequitable conduct under Therasense but relative innocence at the time of an infringement suit if (a) the patent has been assigned to an innocent recipient; or (b) the persons within the firm who were guilty of the inequitable conduct are no longer available and the persons who file the later infringement suit are unsuspecting. This is highly likely to be true for firms with thousands of patents, because the kinds of things that would yield inequitable conduct are often not plain from the patent prosecution record. One conceptual difficulty of Therasense is that state of mind refers to persons, but large firms have many persons. Further, those filing an infringement suit on a ten year old patent have little incentive to dig too deeply in order to find out whether now departed applicants and their agents engaged in equitable conduct.Second, a patent might have been obtained without inequitable conduct, but subsequent evidence of prior art or barring sales or use might emerge, and the person filing the infringement action might have knowledge of these things. In that case a Walker Process antitrust claim should be permitted even though the person prosecuting the patent was innocent of inequitable conduct as Therasense defines it.

Pace Scalia, Thomas, and Gorsuch, a True Originalist Theory of Constitutional Interpretation Would Adopt the View of a Living Constitution, Not a Static or Fixed Constitution

Two main approaches appear in the popular literature on constitutional interpretation: originalism and non-originalism. An originalist approach refers back to some aspect of the framers and ratifiers’ intent or action to justify a decision. A non-originalist approach bases the goal of constitutional interpretation in part on consideration of some justification independent of the framers and ratifiers’ intent or action. Among originalists, there is a debate whether the framers and ratifiers’ actual “original subjective intent” should govern (intent) or whether one should instead look to the “original meaning” of the words adopted by the framers and ratifiers (action). In most cases, the result would be the same under either approach. For this reason, as Justice Scalia once acknowledged, “[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather between original meaning (whether derived from Framers’ intent or not) and current meaning.” This is the issue on whether to adopt a “static” or “living” model for constitutional interpretation. What is often unappreciated in addressing this question is the complication that emerges if one concludes that the framing and ratifying generation believed in the model of a living Constitution. Under such a model, later legislative, executive, or social practice, or judicial precedents, can change the meaning of a constitutional provision. Thus, while it has been noted that standard “originalist” supporters share the premise that the original meaning of constitutional text is fixed at the time each provision is framed and ratified, interpretation according to any version of “originalism” actually does not commit the interpreter to a “static” or “fixed” interpretation of the Constitution. Instead, a “true originalist” form of interpretation can incorporate the principle that the provision was capable of evolution over time. Part II of this article summarizes the four main judicial decisionmaking styles which exist regarding constitutional interpretation. Part III then summarizes the argument that the overwhelming historical evidence is the framers and ratifiers believed in a living Constitution model of interpretation. Without historical support for the standard version of originalism, which adopts a “fixed” or “static” model of interpretation, that leaves supporters of the standard version with only the argument that such an approach is a better approach to interpretation, even if it was not shared by the framers and ratifiers. Part IV of this article discusses the arguments why such standard originalism should not be preferred on normative grounds. Part V of this article provides a brief conclusion. That conclusion notes that the proper approach to constitutional interpretation on both original intent and normative grounds is to interpret the Constitution in the manner that the framers and ratifiers would expect it to be interpreted today. That approach is best reflected on the modern Supreme Court in the interpretation approach of Justice Kennedy, and former Justices O’Connor and Souter. Such an approach represents “True Originalist” interpretation.

How Elonis Failed to Clarify the Analysis of "True Threats" in Social Media Cases and the Subsequent Need for Congressional Response

Social media and other internet communications have altered the way people communicate with one another, including the way people threaten one another. In 2015, the United States Supreme Court decided Elonis v. United States, which imposed a heightened mental state requirement for federal prosecutions of threats issued in interstate commerce. Although the statute, 18 U.S.C. § 875(c), has no mental state requirement, the Supreme Court held that, consistent with the principles of criminal law, only those with guilty minds should be convicted and thus some showing of subjective intent is required. The opinion did not name the requisite mental state, but concluded that negligence was insufficient. In addition, the opinion did not discuss the First Amendment issue at all, making it entirely unclear whether the Court thinks a heightened mental state is required by the First Amendment’s narrow exception to free speech for “true threats.” Following the opinion, the lower courts are tasked with determining both what is the appropriate mental state and determining if this mental state sufficiently protects speech under the First Amendment. The case law surrounding Elonis reveals a bigger problem in this area: the lack of an appropriate criminal statute punishing threatening communications in a world where internet communication is increasingly frequent. Communication through social media or other internet media is different from face-to-face communication because the anonymity allows for people to say things they might not be comfortable saying in person, and the unique attributes of social media platforms (e.g. “likes,” or “retweets”) allow for a different type of communication about one’s opinions and thoughts. This Note will argue that Elonis demonstrated the current level of confusion in this area of the law and the appropriate next step is for Congress to pass legislation geared toward internet threats that is specifically tailored for social media and other internet communication and that identifies the mental state required for conviction. First, this Note explores the statute currently used to prosecute internet threats and the problems that Elonis created. Next, it addresses why the Court’s failure to explain the First Amendment’s relation to subjective intent and “true threats” further confuses an already muddled area of law. The Note then evaluates the possible mental state requirements and the academic and legal arguments regarding which is most appropriate for online threats. Finally, this Note calls for Congress to step into the online threat arena, and draft legislation that will more adequately address the unique characteristics of social media and other internet communications, and find the best way to aid law enforcement in internet threat prosecutions and protect citizens who are threatened in this new space.

Assessing the Public Administration’s Intention in EU Economic Law: Chasing Ghosts or Dressing Windows?

AbstractHere I reflect on the role of subjective or intentional elements in EU economic law prohibitions, particularly in relation to rules concerning public administration. From a normative perspective, it is desirable to suppress the need for an assessment of subjective intent and to proceed with an objectified enforcement of such prohibitions. With this in view, I consider public procurement and Member State aid rules as two examples of areas of EU economic law subjected to interpretative and enforcement difficulties due to the introduction – sometimes veiled – of subjective elements in their main prohibitions. I establish parallels with other areas of EU economic law – such as antitrust, non-discrimination law and the common agricultural policy – and seek benchmarks to support the main thesis that such intentional elements need to be ‘objectified’, so that EU economic law can be enforced against the public administration to an adequate standard of legal certainty. This mirrors the development of the doctrine of abuse of EU law, where a similar ‘objectification’ in the assessment of subjective elements has taken place.I draw on the case law of the Court of Justice of the European Union to support such ‘objectification’ and highlight how the Court has been engaging in such interpretative strategy for some time. The paper explores the interplay between this approach and more general protections against behaviour of the public administration in breach of EU law: the right to good administration in Article 41 of the Charter of Fundamental Rights of the European Union and the doctrine of State liability for infringement of EU law. I conclude with the normative recommendation that the main prohibitions of EU economic law should be free from subjective elements focused on the intention of the public administration.

WILKINSON V DOWNTON REVISITED

IN OPO v Rhodes [2015] UKSC 32, the Supreme Court clarified the elements of the tort of intentional infliction of harm. Created in Wilkinson v Downton [1897] 2 Q.B. 57, the tort has long attracted the attention of academic commentators, but has rarely been argued successfully in English courts. In Wilkinson, the jury awarded the plaintiff damages for the physical suffering she endured as a result of severe shock that was caused when the defendant, playing a practical joke, falsely informed her that her husband had been injured in an accident. Wright J. held that the tort required an act be done “wilfully”, that is “calculated to cause physical harm”, and which does in fact cause “physical harm” (at 58–59). The Wilkinson formulation was subsequently endorsed by the Court of Appeal in Javier v Sweeney [1919] 2 K.B. 316 and again, 70 years later, in Khorasandjian v Bush [1993] Q.B. 727. In the latter case, the Court of Appeal emphasised that the wrongful conduct must cause “physical injury” – as distinct from “mere emotional distress” – and it must also be “calculated to cause” the same (at 735–36). Later, in Wong v Parkside Health NHS Trust [2001] EWCA Civ 172; [2003] 3 All E.R. 932, Hale L.J. appeared to qualify the mental element of the tort, observing that Wilkinson does not require actual subjective intent to cause physical harm; rather, according to her Ladyship, “calculated” means deliberately doing an act that is “likely”, all things considered, to result in the degree of physical harm that was in fact suffered (at [10]–[11]). Subsequently, Lord Hoffmann, writing the principal judgment for the House of Lords in Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406, revisited both elements of the tort. He affirmed that, traditionally, it requires proof of actual harm, such as psychiatric illness, as distinct from mere distress (at [45]); and, consistently with Lady Hale's judgment in Wong, he interpreted Wilkinson as providing that the intent to cause such harm can be “imputed” to the defendant if it is an obvious consequence of a deliberate act, even though such harm may not have been subjectively appreciated or intended (at [37], [40]). Additionally, His Lordship contemplated expanding the tort to capture mere distress short of physical harm, but cautioned that, if the law was to expand to such cases (which he left to future courts to decide), “imputed intention will not do” (at [45]). Rather, mere distress should in His Lordship's view only be recoverable (if at all) where the defendant had a “genuine intention to cause distress” (at [46]).

Elonis v. United States: The Doctrine of True Threats: Protecting Our Ever-Shrinking First Amendment Rights in the New Era of Communication

The First Amendment protects one of our most precious rights as citizens of the United States—the freedom of speech. Such protection has withstood the test of time, even safeguarding speech that much of the population would find distasteful. There is one form of speech which cannot be protected: the true threat. However, the definition of what constitutes a "true threat" has expanded since its inception. In the new era of communication—where most users post first and edit later—the First Amendment protection we once possessed has been eroded as more and more speech is considered proscribable as a "true threat." In order to adequately protect both the public at large and our individual right to free speech, courts should analyze a speaker’s subjective intent before labeling speech a "true threat." Though many courts have adopted an objective, reasonable listener test, the U.S. Supreme Court now has the opportunity, in deciding Elonis v. United States, to take a monumental step in protecting the First Amendment right to free speech. By holding that the speaker’s subjective intent to threaten is necessary for a true threat conviction, the Court will restore the broad protection afforded by the First Amendment and repair years of erosion caused by an objective approach.