Freedom of speech and true threats.

• Author: Rothman, Jennifer E.

1. INTRODUCTION

   Consider the following scenarios:

   You are a physician at a local Planned Parenthood clinic. As part of your job you perform abortions. There have been protests outside the clinic and you have heard about the murders of several doctors around the country who were killed because they performed abortions. One day a colleague calls you and tells you that an anti-abortion group has put up a website which lists the names and home addresses of doctors who perform abortions. When you look at the website you find your name and address on the list along with strong language saying that you and the others on the list will one day be held accountable for your crimes against humanity. Some of the doctors' names have black lines through them. You recognize these names as people who have been murdered by antiabortion fanatics. Can you successfully sue the creators of the website for threatening you and causing you severe emotional distress, or is this website protected by the First Amendment? (1)

   Now imagine yourself a woman in college. You hear from a friend that a classmate has posted a story about you on the Internet with a newsgroup called "sex stories." You read the posting and find a gruesome and detailed story of the narrator torturing and raping you. The story culminates in a description of you being doused with kerosene and lit on fire. The posting uses your real name. You are scared and call the police. Should your classmate be convicted of threatening you? (2)

   You attend a rally in support of a boycott of white-owned stores whose owners will not hire African American employees. You are aware of several violent acts against blacks who have ignored the boycott including the firing of shots into the house of one boycott violator. The leader of the boycott speaks at the rally and warns boycott violators that "their necks will be broken." You had been considering returning to some of the white-owned stores but are frightened by the leader's words. Should the leader of the boycott be arrested for threatening boycott violators or is his speech protected by the First Amendment? (3)

   As a child you grew up watching the Lone Ranger on television. From this show you picked up the phrase "the silver bullets are coming" which signified to you that the Lone Ranger was on his way to save the day. Many years later, after an acrimonious divorce, you contact an FBI agent with newfound evidence that implicates your ex-father-in-law in an illegal bankruptcy scheme. On your voice-mail message to the FBI agent, rather than just saying you found new evidence, you use your favorite childhood phrase: "the silver bullets are coming!" Shortly after leaving this message, you are arrested for threatening a federal officer. Should you be convicted? (4)

   As the above situations show, there are many different contexts in which statements might be considered threatening. Many courts and scholars have focused only on one or two situations individually. The problem with not considering a broad spectrum of scenarios is that too often scholars and courts rely on gut judgments rather than on a clear and predictable test. The main purpose of this article is to create a test for determining when a statement is a "true threat" not deserving of First Amendment protection.

   The law surrounding threats has gained recent attention from commentators after decades of virtual anonymity and unaddressed confusion among the lower courts. The sudden interest in threats has been sparked primarily by the proliferation of widely disseminated Internet speech. (5) In particular, two high-profile cases have shined the spotlight on threats: the so-called Nuremberg File case (6) and the Jake Baker case, (7) both of which I used in the above hypotheticals. Despite this recent interest, the three major hornbooks and treatises on the First Amendment and the Constitution still do not have an index listing for true threats. (8)

   Various federal statutes make it a crime to convey threats by mail or through interstate commerce, to intimidate or threaten anyone involved in reproductive services, and to threaten the President and other government officials as well as law enforcement officers. (9) Many state statutes also prohibit the making of threats. (10) Outside the arena of criminal law, threats are punished primarily as torts under theories of intentional or reckless infliction of emotional distress. (11)

   Defendants in both criminal and civil cases can use the First Amendment as a defense, arguing that their speech should be protected. However, the free speech clause of the Constitution has never been read to protect all speech. (12) Speech such as obscenity, fighting words, child pornography, incitement, and "true threats" is considered outside the protections of the First Amendment. (13)

   Even though the Supreme Court has made clear that true threats are punishable, it has not clearly defined what speech constitutes a true threat. The only Supreme Court case to elaborate on the true threats exception to the First Amendment is United States v. Watts, (14) a per curiam decision which made clear that a law "which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech." (15) However, the Supreme Court did not provide a specific test for making this distinction.

   To determine when speech is protected by the First Amendment, and therefore not punishable as a threat, most circuits have adopted either a reasonable speaker or a reasonable listener test. Both these tests essentially amount to an evaluation of whether or not a reasonable recipient of the statement would believe it constituted a true threat. (16) The Supreme Court has never reviewed the differing circuit court tests to determine their constitutionality or the validity of the circuits' interpretations of Watts.

   Most circuits have allowed the admission of the alleged victim's reaction as evidence of how a reasonable person would interpret the statement. Combined with the reasonable speaker/listener test this makes it possible for people who did not purposely, knowingly, or even recklessly make a threat to be punished for making one. For example, even where the speaker had no expectation that the alleged victim would hear the statement, the speaker can be held liable or convicted, in most courts, of making a threat.

   Another flaw of the current reasonable speaker/listener test is that it allows for the punishment of "warning threats," which are offered to protect the listener from harm, or to scare the listener by accurately relaying a danger that exists, but which the speaker has no direct control or influence over. Such warnings should be protected under the First Amendment not only because they have inherent value when offered to alert an individual of danger, but also because they are necessary for the free expression of ideas.

   The failure of the reasonable speaker/listener test to protect warning threats is inconsistent with the holding in NAACP v. Claiborne Hardware, (17) the other major Supreme Court case besides Watts directly to address true threats. As I will discuss in detail, the application of the reasonable speaker/listener test would likely lead to a conviction of the defendant in Claiborne Hardware, when in fact the Supreme Court held that the defendant's speech was protected by the First Amendment.

   This article proposes a new test for determining what is a true threat. The reasonable speaker/listener test, adopted by a majority of circuits, is useful but incomplete. I add two additional elements to my test: (1) a subjective intent prong which requires the prosecution or plaintiff to prove that the speaker purposely, knowingly, or recklessly intimidated, frightened, or coerced the target; and (2) an actor prong which requires proof that the speaker explicitly or implicitly suggest that he or his co-conspirators will be the ones to carry out the threat. In addition, I develop in more detail the factors that a fact-finder should consider when applying the reasonable listener prong.

   The addition of the actor prong is wholly novel and has not been discussed by courts or scholars to date. (18) This prong is crucial to my test, and crucial to the protection of speech under any test for determining whether a true threat has been made. By requiring that there be, at the very least, some implication that the speaker or his associates will be the ones to carry out the threat, greater latitude is given to speakers to use, without fear of punishment, the strong language that the First Amendment allows.

   Part II of this article examines the policy behind the First Amendment exception for true threats. Part III traces the Supreme Court's treatment of threats. Part IV explores the federal circuit courts' differing opinions of what the Supreme Court intended. Part V criticizes the current tests applied by the lower courts, as well as some of the alternatives suggested by other commentators. Finally, Part VI presents my proposed test and applies it to both hypothetical and actual cases in what I call a "test suite." (19) By applying the proposed test to a variety of situations, I avoid the pitfalls of other tests that only work in a few instances or that have been molded by scholars to reach the desired result in a particular case.

2. WHY PUNISH THREATS?

   In order to discuss more easily the justifications for making a true threats exception to the First Amendment, it is necessary to establish a rudimentary definition of what speech could be considered a threat. At a basic level, threats are speech which communicates the possibility of future use of physical force or violence against the intended victim or those close to the victim, or unlawful damage of valuable property. (20)

   There are four main reasons why true threats are not protected speech: (1) to...