True Threats v. Pure Speech: the Intersection of Public Safety and the First Amendment

• Publication year: 2016
• Author: By Adithya Mani and Firdaus F. Dordi

TRUE THREATS V. PURE SPEECH: THE INTERSECTION OF PUBLIC SAFETY AND THE FIRST AMENDMENT

By Adithya Mani and Firdaus F. Dordi^*

Introduction

Judge Learned Hand wrote that the First Amendment "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all."¹ Although the penumbra of expression protected by the First Amendment is vast, it is not endless. The Supreme Court has recognized categories of expression that fall outside the First Amendment's protection.² In Watts v. United States, the Court ruled that a true threat of physical violence is one such category.³ The Court, however, has yet to articulate a clear test and the appropriate mens rea necessary for determining what constitutes a true threat, leaving lower courts, lawyers, and society in a state of uncertainty, guessing where the boundary that separates protected speech from unprotected threats lies.

The advent of the Internet and social media has further complicated this inquiry. When the Internet was still in its infancy, one jurist wrote, "It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country—and indeed the world—has yet seen."⁴ Twenty years later, those words resonate even more powerfully than when they were written, and the line of demarcation between the exercise of a fundamental freedom and protecting public safety remains blurred.

In 2015, the Supreme Court heard Elonis v. United States, a case that appeared to allow the Court to consider the limits for speech on social media under the true threats exception to the First Amendment.⁵ In resolving the case, the majority found that it was not necessary for the Court to reach the First Amendment question.⁶ The majority preferred to exercise discretion over valor and restrained from answering the question of whether recklessness on the part of the speaker is constitutionally sufficient or whether the First Amendment requires a greater mens rea on the part of a speaker for pure speech to constitute a true threat.⁷ In not reaching the First Amendment question, much of the uncertainty that existed before Elonis continues to persist.

In this Essay, we explore the various analytical paths that litigants, their lawyers, and courts can consider in distinguishing between protected speech and true threats, which do not receive First Amendment protection. In Section I, we examine the Supreme Court's true threat jurisprudence and the contours of the First Amendment's protections. In Section II, we highlight the remaining uncertainty that continues to exist after Elonis with respect to the mens rea required to prove a true threat. Next, in Section III, we analyze whether a recklessness mens rea would withstand constitutional muster. Then, in Section IV, we consider a safer mode of constitutional analysis applied by a number of courts that requires not only specific intent on the part of the speaker, but also an objective interpretation that the reader did or could reasonably perceive the speaker's words as a threat. In Section V, the Conclusion, we explore the importance of a clearer mens rea standard for true threats in an increasingly digital world.

I. The Supreme Court's True Threat Jurisprudence

A. Watts v. United States

The Supreme Court first addressed the question of whether speech that threatens harm to another is protected by the First Amendment in Watts v. United States.⁸ Robert Watts, an 18-year-old African American who had recently received his draft classification and notice to report for his physical, was prosecuted for making threats against the President at a public protest of the Vietnam War on the Washington Monument grounds.⁹ Watts allegedly stated, "'I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.' 'They are not going to make me kill my black brothers.'"¹⁰ On the basis of this statement, Watts was federally prosecuted for violating 18 U.S.C. § 871, a 1917 statute that made it unlawful for any person to knowingly and willfully make any threat to take the life of or to inflict bodily harm upon the President of the United States.¹¹ At the close of the Government's case, Watts's trial counsel moved for judgment of acquittal arguing that his client's statement was "made during a political debate, that it was expressly made conditional upon an event—induction into the Armed Forces—which petitioner vowed would never occur, and that both petitioner and the crowd laughed after the statement was made."¹² The motion was denied, and a jury convicted Watts of violating the statute. The D.C. Circuit affirmed the conviction in a 2-1 decision,¹³ and the Supreme Court granted certiorari.

In a per curiam decision (delivered via an opinion issued in the name of the Court rather than specific judges), the Court found that the statute under which Watts was prosecuted was constitutional on its face.¹⁴ It reasoned "[t]he Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence."¹⁵ The Court nevertheless recognized that a statute which criminalizes a form of pure speech, such as the one before it, "must be interpreted with the commands of the First Amendment clearly in mind."¹⁶ It declared that where a form of pure speech is at issue, "we must interpret the language Congress chose 'against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'"¹⁷ Acknowledging that "[w]hat is a threat must be distinguished from what is constitutionally protected speech," the Court required the Government must "prove a true 'threat.'"¹⁸ Implicit in the Court's language is that "true threats" of physical violence are not protected speech.¹⁹

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The Court, however, provided no test for determining a "true threat" or for distinguishing a "true threat" from speech that is protected by the First Amendment. Recognizing that the "language of the political arena ... is often vituperative, abusive, and inexact," the Court found that Watts's speech was "a kind of very crude offensive method of stating a political opposition to the President."²⁰ Accordingly, it reversed his conviction and remanded with instructions that the case be returned to the District Court for entry of judgment of acquittal.²¹ In one sentence, the Court suggested that context, the conditional nature of the speech in question, and the effect on the listener were factors that led to its conclusion: the Court noted, "[t]aken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."²²

B. N.A.A.C.P. v. Claiborne Hardware Co.

The Court next addressed the constitutionality of threats over a decade later in N.A.A.C.P. v. Claiborne Hardware Co.²³ In 1966, the National Association for the Advancement of Colored People (NAACP) organized a boycott of white merchants in Claiborne County, Mississippi.²⁴ The purpose of the boycott was to secure the city's and white merchants' compliance with a list of nineteen demands, which included desegregation, as well as equal rights and opportunities for black citizens.²⁵ The boycott was largely supported by speeches encouraging nonparticipants to join the common cause, personal solicitation, threats of social ostracism, and by nonviolent picketing.²⁶ But some acts and threats of violence did occur.²⁷ The following year, seventeen white merchants sued the NAACP, a second civil rights organization, and 146 individuals who participated in the boycott for injunctive relief, attachment of property, and pecuniary damages resulting from the boycott.²⁸ One of the individuals named in the lawsuit was Charles Evers, the Field Secretary of the NAACP in Mississippi.²⁹ During a speech in 1969, Evers stated "boycott violators would be 'disciplined' by their own people and warned that the Sheriff could not sleep with boycott violators at night."³⁰ In another speech he stated, "If we catch any of you going in any of them racist stores, we're gonna break your damn neck."³¹

The Mississippi Chancery Court found the vast majority of the petitioners, including Evers, jointly and severally liable for respondents' lost earnings during the seven-year period which the boycott lasted (1966 to 1972) and issued a broad permanent injunction.³² Although the Mississippi Supreme Court reversed much of the Chancery Court's judgment, including the verdict against 37 individual defendants, it upheld the imposition of liability on the basis of the chancellor's common-law tort theory.³³ It rejected petitioners' First Amendment arguments and found that "[i]f any of these factors—force, violence, or threats—is present, then the boycott is illegal regardless of whether it is primary, secondary, economical, political, social or other."³⁴ The Supreme Court granted certiorari to determine whether petitioners' activities were protected by the federal Constitution.³⁵

The Supreme Court held that "the non-violent elements of petitioners' activities are entitled to the protection of the First Amendment."³⁶ However, the Court reaffirmed that "[t]he First Amendment does not protect violence."³⁷ On the question of the organizer's liability, the Court found:

Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful

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