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George, In my earlier message regarding the recent cross burning decision by the Virginia Supreme Court, I stated it was beyond my abilities to explain the degree to which the First Amendment protects expression that some perceive as threatening. I will nonetheless attempt to do so here because I have never been one to let a lack of understanding of a subject prevent me from speaking on it. Despite the absolute language of the First Amendment, the U.S. Supreme Court has told us that First Amendment protection for speech is not absolute. There are exceptions to the Amendment's dictate that the government "shall make no law...abridging freedom of speech." These exceptions include, defamation, obscenity, incitement to imminent illegal activity, "fighting words," fraudulent commercial misrepresentation, and "true threats." For each of these exceptions, save true threats, the Supreme Court has articulated a legal standard to determine if particular expression falls under the exception. Although the U.S. Supreme Court has pronounced that "true threats" are not protected speech, it has offered very little guidance as to what actually constitutes such a threat. As a result, the status of the law of threats and the First Amendment is confusing, contradictory, and in a state of flux. The lack of direction from the Supreme Court has left lower courts around the country free to reach different conclusions as to what constitutes unprotected threatening speech. Further, prosecutors have successfully used the pronouncement that "true threats" are not protected to bypass traditional First Amendment principles and prosecute expression that would otherwise be protected. That's exactly what was attempted in the Virginia case. To illustrate: in the case of RAV v. St. Paul, the U.S. Supreme Court told us that cross burning is expressive conduct that implicates the First Amendment. It was in the case of Watts v. United States that the Supreme Court told us that "true threats" are not protected speech but left it open as to what constitutes such a threat.. In an effort to remain consistent with these two pronouncements, the Virginia prosecutors argued that the state's cross burning statute did not seek to prohibit all cross burnings, only those done with the "intent of intimidating" (i.e. threaten) another person. Because threats are not protected speech, the state argued, the statute did not violate the First Amendment. One of the problem's with this theory is that, if accepted, it would allow government the means to prohibit what would otherwise be protected speech by simply adding the phrase "with the intent of intimidating" to the prohibition. Thus, the U.S. Supreme Court needs to step in and provide a legal definition of "true threats." It is possible that the Court may do so by agreeing to hear the appeal of the Virginia cross burning case. Another possible current candidate is a high profile case pending before the 9th Circuit Court of Appeals involving threats allegedly made on an anti-abortion website. On first impression, one might think that defining a "true threat" would be an easy task. In fact, it is incredibly difficult to do while at the same time protecting traditional First Amendment principles. (Remember, this only concerns punishing someone for the mere expression of an intent to do harm, not expression coupled with some act towards making that harm become a reality.) Whenever the U.S. Supreme Court does decide to provide a legal definition of "threat," it will have to resolve a number of complex and difficult issues, including the following: What is the legal difference between a threat and expression that makes one anxious or nervous? *If fear is the harm we are seeking to prevent by prohibiting threats, doesn't the target of the threat actually have to hear the threat? If not, shouldn't it have to be proven that the speaker of the threat at least intended for the target to hear of the threat? *Does it have to be a threat of bodily harm or are threats of other types of harm included? For example, should a "true threat" include the mere expression (but no action) of an intent to destroy another's house? If yes, then what about a statement of intention (but again, no action) to illegally cut a branch off a neighbor's tree? In other words, is it the threat itself or the degree of harm being threatened that determines whether the expression is protected? *Does the threat have to be explicitly stated or can it be implicit? Clearly, there are plenty of ways to threaten people without explicitly saying it. But if a threat can be implied, doesn't that create the possibility that people will be convicted for making a threat when in fact none was intended? *Does the speaker have to have the specific intent to threaten someone or is it enough that a reasonable person would interpret the statement as a threat? (What if you believed me when I said "I am going to kill you" but in fact it was a joke and I thought you knew it.) *If there is an intent requirement, does the speaker have to intend to carry out the threat or does he just have to intend to make one feel threatened? If the latter, what if the threat was only part of the motive for the expression? (Surely, the neo-Nazi's that chose to march in Skokie, Illinois did so in part because the march would threaten the town's heavily Jewish population. Should the government therefore be able to prohibit the peaceful public gatherings of controversial groups because some in the community feel threatened by the group? ) *Does the target of the threat have to be a particular person or persons or can it be a statement of intention to do harm to no one in particular? In other words, at what point does a threat become so generalized that it is no longer can be considered a threat? *Does the threat have to involve a statement of intention to do imminent harm or can it be some harm in the distant future? All of the various definitions of a true threat promulgated by the lower courts reach expression previously considered protected. That fact leads to the unfortunate conclusion that when the U.S. Supreme Court does finally address this issue, the result will be either (1) greater protection from fear caused by threats but greater government authority to punish that expression of which it disapproves, or (2) a stronger First Amendment but at a cost of potentially having to endure more fear in our lives. To quote Lloyd Snook, stay tuned. Josh Wheeler (electronic mail, November 13, 2001)
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