“ T rue threats”

1. “True threats” • After Watts v. United States, to determine if a unprotected “true threat” has occurred, SCT looks to: • Content of Speech – what did speaker say? • Context of Speech – in what circumstances does speech occur? • Intent of speaker is important too (Virginia v. Black) “’True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” But it is unclear whether speaker must intend to threaten or whether a listener only need to reasonably infer a threat from a communication that the speaker directed at them

2. Claiborne Hardware • Charles Evers’s speeches contained some statements that can be interpreted as threats. Does his speech transcend the boundaries of the First Amendment. • What factors suggest that his statements are or are not punishable threats?

3. Claiborne Hardware – threats vs. incitement • SCT doesn’t even really analyze this as a threats case. Instead it says: • If violence had followed Evers’s use of “strong language,” there would have been a “substantial question” as to whether he was liable for that violence. BUT when appeals for unity and action in a common cause “do not incite lawless action, they must be regarded as protected speech” even if they contain threatening statements. • SCT effectively analyzes Evers’s statements under Brandenburg/incitement standard. • Claiborne Hardware raises the question of whether public, diffuse, threatening statements should be judged under a threat or incitement standard. • So that’s another thing to think about in these cases

4. Threats jurisprudence applied • Were the statements to Billie (p. 80 problem 2) true threats? • Were Bruce’s statements (p. 79 problem 1) true threats? • Can ACLA be sued for making true threats (p. 83 problem)?

5. ACLA decision – en banc • 9th Circuit en banc majority – posters and website are a true threat. • Given content & context of the speech, a reasonable person would foresee that the posters/websites would be interpreted by those to whom they were directed as a serious expression of intent to harm • 9th Circuit en banc dissent – posters and website are not a threat and they don’t meet the incitement standard either • To be a threat, a statement must send the message that the speaker themselves or individuals acting in concert with them will carry out the violence (dissent did not see evidence of “acting in concert” with others potentially acting violently) • This is a public political statement rather than a private face-to-face communication – can’t say its really aimed at particular people even if they are named • At best this is an attempt to incite action, which doesn’t meet Brandenburg.

6. Some issues with threats cases • Some threats cases are pretty easy. But in many cases they are highly dependent on a number of issues that the SCT has never really resolved and which must be dealt with based on the individual circumstances of a given case: • Can we infer an implicit threat from context alone when words themselves are not threatening? • What constitutes an implicit threat? • Is publication of a person’s true, personal information a threat? • How does the presence of others who may carry out the threat affect the requirements of punishment (i.e., treatment of the case as incitement)? • What relationship must the crowd/group have with the speaker to treat it as threat vs. incitement vs. political hyperbole? • Does the speaker have to receive the threat before it can be punished? • What if the threat is issued in a public statement instead of privately one-on-one?