INTRODUCTION I. TAKING FEAR SERIOUSLY II. THE CATEGORY AS AN UNCERTAIN TEMPLATE A. A Capsule Restatement of the Law of Threats and the First Amendment (So Far) B. Imagine You Are a Juror--Six Times C. Circumstances Alter Cases--and Categories III. THREATS, FACTS, AND LAW A. The Jury's Role: Preliminary Thoughts B. Estimating Expectations of the Speaker and the Target C. The Chimera of Doctrinal Purification: Herein of the Planned Parenthood Decision and Its Critics CLOSING WORDS INTRODUCTION
Two recent decisions, one by the Supreme Court (1) and one by the Ninth Circuit, (2) have occasioned an ink spill of Exxon Valdez proportions and no little contention. The question, broadly stated, is when the First Amendment should protect speech alleged to constitute a threat by the speaker to kill or seriously injure someone. Given the level of discord, a notable feature of the debate is the acceptance, by judges and commentators alike, of the general proposition that a threat is not protected by the First Amendment, as the Supreme Court told us as early as 1969. In Watts v. United States, (3) where the Court held that no "true threat" had been issued by the speaker, it also took the occasion to announce the "threats exception." (4)
Because the Supreme Court offered little direction for more than two decades, the state supreme courts and federal circuit courts were left to their own devices in fashioning mediating principles to define the contours of the category. On their own, these courts have achieved a considerable consensus around a general formula, even though claims about threats are made in widely diverse factual settings. As this Article shows, the prevailing formula is a set of abstractions offering minimal predictability of results from one case to the next. Remarkably, however, judges typically recite one version of the formula or another as if it were determining the outcome. The result is a collection of opinions that are long on assertion and short on evaluation of anything that matters. In the discussion that follows, we shall see the doctrinal weakness of such an approach. The threats exception, as a First Amendment category, has largely been shaped to fit the very facts it is supposed to govern.
Academic commentary on the threats exception has been dominated by an effort to provide bright-line rules of decision that will severely limit the discretion of jurors or trial judges. Such an objective is most clearly evident in writings criticizing the Ninth Circuit's Planned Parenthood decision. Responding to these critics, this Article shows that the threats exception's irregular applications, and its adaptability to new forms, are unavoidable. The central inquiry in each case goes to the assignment of meaning--that is, considered in its context, does this statement express a threat, or not? Given the wide-ranging variation of the facts in these cases, precedent typically turns out to be an uncertain guide for deciding the case at hand--a classic indication that a First Amendment problem is present.
In a sizeable number of cases, judges have differed in the meanings they assign to speakers' words and behavior. In major part, their division appears to reflect divergent attitudes toward the relative importance of two objectives: constructing abstract First Amendment doctrine for the future and doing justice in the case at hand. To a lesser extent, similar disagreements are found among the commentators who discuss the threats exception. This admirable body of writing is dominated by efforts to purify abstract doctrine and to criticize courts for failing to conform to the purified models. But it is hard to force a sharply defined doctrinal grid on a zone of human behavior that is, almost by definition, disorderly. Recent proposals for hard-edged rules are not likely to be adopted by the courts. Nor would they be likely to confine the discretion of jurors and trial judges or to produce precedents that are readily translated from one case to another.
Mondrian produced some excellent art, but it wasn't representational. In this Article I seek illumination of the threats exception by descending from the generalized doctrinal formula to a number of diverse real-life experiences in which speakers' expressions have been alleged to bear threatening meanings and judges have had divergent reactions to the speakers' claims of First Amendment protection. These cases offer a series of lessons about the relation of the doctrine to the circumstances that require its application. A long concluding section illustrates the lessons through a close examination of the facts behind the Planned Parenthood decision.
The interaction of fact-finding and law declaration is, of course, a basic concern of any legal system. In considering the idea of "threat" as a doctrinal category and as a question of fact, we shall have repeated occasion to observe the accuracy of Clifford Geertz's remark:
The rendering of fact so that lawyers can plead it, judges can hear it, and juries can settle it is just that, a rendering: as any other trade, science, cult, or art, law, which is a bit of all of these, propounds the world in which its descriptions make sense. (5) I. TAKING FEAR SERIOUSLY
For a more than a decade, the list of reasons underlying the threats exception usually has been recited from the Supreme Court's opinion in R.A.V. v. St. Paul. (6) That opinion enumerated three justifications for punishing threats: protecting individuals against the fear of violence; protecting against the disruption that a threat of violence may cause; and preempting the possible violence that may be committed by a speaker who threatens. (7) Jennifer Rothman, in her thoughtful critique of doctrinal developments under the threats exception, suggested a fourth reason: protecting those who are the targets of threats against "being coerced into acting against their will." (8)
As a prologue to the discussion of doctrine and factual settings, I want to highlight the importance of the first reason, which in my view embraces the fourth. (9) Commentary on the threats exception has been strangely dismissive of the harms caused to the target of a death threat, (10) and the discussion that follows is designed to bring those harms to center stage as a weighty aspect of the target's liberty--and thus a concern of constitutional dimension.
In Virginia v. Black, the Supreme Court, for the first time ever, interpreted the threats exception to permit the punishment of expression--the burning of a cross with the intent to frighten particular individuals. (11) Writing for the Court, Justice Sandra Day O'Connor quoted the famous opinion in Chaplinsky v. New Hampshire, (12) which read out of the First Amendment another category of speech: face-to-face insults called "fighting words." Such words, said the Court, "by their very utterance inflict injury." (13) This description was ill-suited to Walter Chaplinsky's case, but it is well chosen to describe a death threat that looks real to the person who is threatened--and most cases implicating the threats exception have involved alleged life-threatening statements about identified individuals, called "targets" in this Article. (14)
From the earliest days of the common law, assault--intentionally putting someone in fear of physical harm--was a crime and also a tort, a trespass against the King's peace. (15) In part, the early legal remedies were designed to keep the target of an assault from taking the law into his own hands. But the power of the state to protect people against being put in fear can stand on its own, independent of the purpose to avoid private vengeance. When President Franklin Roosevelt coined the expression "freedom from fear" during World War II, (16) his immediate referent surely was one well-publicized aspect of Nazi terror--the nighttime knock at the door by the secret police. But the phrase also resonates with the larger need of all humans for a sense of physical security, perhaps the most basic freedom protected by law. Deliberately putting people in fear for their lives is a grave wrong inflicting a grave harm, and it deserves a strong reaction by the state. No surprise, then, that the threats exception "has traditionally coexisted comfortably with even a strong First Amendment." (17)
Fear is one of the most basic emotions, very old in the history of human evolution. It is easy to see why. The ability to avoid death, or serious physical impairment, is crucial to any organism's survival and reproduction. We should not be surprised to learn that much of the human system of fear arousal, underlying vigilance and sustained engagement in strategies to avoid harm, lies in the brain stem--part of humans' inheritance from their reptilian past. (18) Humans have a well-developed ability to recognize threats. This perception, like any other, is "an act of categorization," (19) a decision that the situation poses a threat. (20) The perception is also a prediction, (21) based on "learned expectancies" that have a neurological basis. (22) Fear triggers a reaction with impressive efficiency. In the face of a perceived threat, the neurological phenomena of defense conditioning occur in an instant, and they make an enduring impression--perhaps lasting for a lifetime. Fear is especially likely to continue when the threat in question is a death threat. "[W]here consequences are grave, expectancy concerning what may be encountered does not change easily...." (23) As Joseph LeDoux says, "a predator will always be a predator." (24) Further, the "contextualization of fear--that is, the regulation of fear on the basis of the situation we are in"--has its own basis in the physiology of the brain. (25)
Death threats are particularly harmful, for they trigger short-term fear and long-term anxiety. For some purposes, one can distinguish between fear and anxiety: "Classically, ... fear is viewed as a reaction to a specific and...