The First Amendment and Speech That Allegedly Threatens Public Officials

Chris Moody (Daily Caller) writes:

Texas Democrat Rep. Rubén Hinojosa said Monday that he is open to joining Pennsylvania Democrat Rep. Robert Brady in support of a bill to curb speech that could be perceived as “threatening” to public officials.

“The level of discourse is out of control,” Hinojosa said. “Yes, I would certainly sit down with him and look at the wording and see how we could strengthen it. There’s a need to tone down the rhetoric that occurred here these last few years. In my opinion, I would support legislation, yes.”

Brady told the New York Times on Sunday that he would seek legislation banning certain types of speech in reaction to the weekend shooting in Tucson, Ariz. that left Democrat Rep. Gabrielle Giffords injured and killed six others.

“You can’t threaten the president with a bullseye or a crosshair,” Brady said Sunday. “This is not a wake-up call. This is a major alarm going off. We need to be more civil with each other. We need to tone down this rhetoric.”

Brady was referring to political messaging ads used by both parties that use crosshairs to show districts they are targeting for victory….

Brady has not yet made the specific language of the bill public….

1. The Supreme Court has made clear that threats — including threats against the life of the President — can only be punished if they are “true threats,” which is to say “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.” Constitutionally proscribable true threats are those “where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” The speaker need not actually intend to act on the threat, but the threat has to be reasonably perceived as a “serious expression of an intent to commit” that act. (Some lower courts have suggested that the Court didn’t really mean to limit the First Amendment exception to speech made with the deliberate purpose of placing someone in fear of bodily harm or death. But even if that is accepted, a statement would still be unprotected only if a reasonable person would interpret the speech as intended to instill such fear.)

2. In particular, the leading Supreme Court case, Watts v. U.S. (1969), held that the Constitution protects even the statement “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.,” said at antiwar rally. Statements that place the President in a bullseye or a crosshair might thus be entirely constitutionally protected, if for instance the statement is in a Democratic or Republican party mailer urging people to give money to help defeat the President in the next election. A reasonable reader would not perceive such a flyer as a threat that the author, or the author’s confederates, are going to actually shoot the President. As Jack Shafer (Slate) and many other have noted, martial metaphors are commonplace in American politics. The mere use of such a metaphor does not strip the speech of constitutional protection.

3. If the concern is not that the President will feel threatened, but that some readers might be moved by such statements to attack the President, the speech remains protected. Under Brandenburg v. Ohio (1969), speech may be restricted on such a theory only if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added). Hess v. Indiana (1973) makes clear that speech doesn’t satisfy the “imminence” requirement if it is merely “advocacy of illegal action at some indefinite future time” (emphasis added). But in any event, it certainly can’t qualify for the Brandenburg exception to the First Amendment when it is not at all directed to producing lawless action, and the concern is simply that a few kooks or extremists might be moved to commit a crime at some indefinite time as a result of seeing the speech.

4. Note that Watts and Brandenburg both came in 1969, at the end of a decade that saw the assassination of a President, of one of the leading candidates for President, and of one of the leading political leaders in the nation. It was also a decade that generally saw far more homegrown political violence than this past decade has seen. Nonetheless, the Court firmly concluded that even speech that specifically calls for violence, or even seems to explicitly threaten violence, is unprotected only if it fits within the narrow “true threats” or “incitement” exceptions — and, as I said, political maps with targets painted on them, the “If they bring a knife to the fight, we bring a gun” line, and the like certainly fall far outside those exceptions.

5. As it happens, federal law already provides that “Whoever transmits in interstate or foreign commerce any communication containing … any threat to injure the person of another.” (A separate law provides that anyone who “makes any … threat [to inflict bodily harm] against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.”) So if any proposed law merely bans true threats, then it would be unnecessary (with one exception noted below). And if it tries to go beyond true threats — which is what the proposer’s rhetoric seems to suggest — then it would be unconstitutional.

6. The one way Congress could broaden the ban on threats against Congressmen to match the ban on threats against the President is to cover all true threats, and not just true threats “transmit[ted] in interstate or foreign commerce.” The “commerce” requirement is not hard to satisfy — communications that are routed through computers in other states, for instance, would suffice — but it sometimes won’t be satisfied, for instance when they are made face-to-face or even in a purely intrastate telephone call. But all the supposedly threatening/inciting/menacing/violent/etc. speech that I’ve heard faulted in the Arizona incident went out across state lines. And I know of no evidence that purely intrastate threats against federal legislators are somehow a serious problem that is being inadequately dealt with under state law.

7. Shifting from the First Amendment to the enumerated powers of Congress, I assume that a federal ban on true threats against members of Congress would be within an enumerated federal power for the same reason that I assume the ban on true threats against the President would be within an enumerated power: It would be within the constitutional authorization of “Laws which shall be necessary and proper for carrying into Execution” the various powers created by the Constitution, since threats that may have the purpose or effect of intimidating federal officials tend to undermine the federal government’s ability to soundly decide policy. (If federal officials believe that voting in particular way, or going to meet constituents in particular ways, could get them killed, they may fail to do what is required to serve the nation’s interests; and threats that convey this message of danger thus interfere with the making and execution of federal laws.)