The Volokh Conspiracy - Jokes About Killing the President:

Drudge reports:

Government officials are reviewing a skit which aired on [Air America] Monday evening . . . .

The announcer: "A spoiled child is telling us our Social Security isn't safe anymore, so he is going to fix it for us. Well, here's your answer, you ungrateful whelp: [audio sound of 4 gunshots being fired.] Just try it, you little bastard. [audio of gun being cocked]."

The audio production at the center of the controversy aired during opening minutes of The Randi Rhodes Show.

"What is with all the killing?" Rhodes said, laughing, after the clip aired.

"Even joking about shooting the president is a crime, let alone doing it on national radio . . . we are taking this very seriously," a government source explained. . . .

A brief First Amendment analysis: Joking about shooting the President certainly isn't a crime as such; threatening to shoot the President is. Threats (whether against the President or not) are indeed constitutionally unprotected, but to be a punishable threats, a statement must at least be understood by a reasonable listener as a true threat, rather than just hyperbole (or humor). Here's an excerpt from the leading case, Watts v. United States (1969):

[D]uring a public rally on the Washington Monument grounds [in 1966, t]he crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Petitioner, who himself was 18 years old, entered into the discussion after one member of the group suggested that the young people present should get more education before expressing their views.

[P]etitioner responded: "They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. 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." On the basis of this statement, the jury found that petitioner had committed a felony by knowingly and willfully threatening the President....

We do not believe that the kind of political hyperbole indulged in by petitioner fits within [the term "threat"].... The language of the political arena ... is often vituperative, abusive, and inexact. [Watts'] only offense here was "a kind of very crude offensive method of stating a political opposition to the President." Taken 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....

My sense is that the same applies here; and while the Secret Service does need to investigate all such statements, out of an abundance of caution, the speakers can't be prosecuted given the context.

The speakers may also have another defense: Virginia v. Black (2003) also held that a statement can't be a punishable threat unless it's made "with the intent of placing the victim in fear of bodily harm or death." Thus, following Black, a statement is a punishable threat only if a reasonable listener would understand it as a threat of attack and the speaker intended that the listener get that impression.

Before Black, there had been a lot of debate about whether such an intention is required, or whether negligence on the speaker's part is enough. (Under the negligence test, it's enough that a reasonable speaker would have recognized that a reasonable listener would see the statement as threatening, even if that wasn't the speaker's purpose. This is something of an oversimplification of the lower court caselaw, but it's close enough for our purposes, I think.) Oddly enough, the Supreme Court didn't discuss this debate, or explain why it was taking one side of it. Nonetheless, the Court did announce the likely-understanding-plus-intent requirement, and a plurality later kept stressing the speaker's intent as an important part of the analysis. So I think the Air America speakers are probably protected from legal punishment on those grounds, too (though of course this assumes that the speakers weren't intending to put the President or the Secret Service in fear, and that reasonable listeners would indeed understand the statement as a joke).

This may leave some people with the question: What about all those signs in airports saying that even joking about bombs is a crime? I can't tell you for sure whether, following Black, someone can be prosecuted for his joke when (1) he doesn't intend to threaten anyone with the joke but (2) the joke is understandably interpreted as possibly serious. Perhaps courts would draw some distinction based on the joke's likely lack of political content, and the joke's potentially highly disruptive effects (the area may have to be closed down while the potentially bomb-filled luggage is isolated and then destroyed, and so on). But the speaker would have a decent defense based on Black, I think. And in any event, the Air America statement — a statement said about the President in a political context — would probably be protected by Watts, Black, or both.

	[Eugene Volokh, April 27, 2005 at 4:06pm] Trackbacks Jokes About Killing the President: Drudge reports: Government officials are reviewing a skit which aired on [Air America] Monday evening . . . . The announcer: "A spoiled child is telling us our Social Security isn't safe anymore, so he is going to fix it for us. Well, here's your answer, you ungrateful whelp: [audio sound of 4 gunshots being fired.] Just try it, you little bastard. [audio of gun being cocked]." The audio production at the center of the controversy aired during opening minutes of The Randi Rhodes Show. "What is with all the killing?" Rhodes said, laughing, after the clip aired. "Even joking about shooting the president is a crime, let alone doing it on national radio . . . we are taking this very seriously," a government source explained. . . . A brief First Amendment analysis: Joking about shooting the President certainly isn't a crime as such; threatening to shoot the President is. Threats (whether against the President or not) are indeed constitutionally unprotected, but to be a punishable threats, a statement must at least be understood by a reasonable listener as a true threat, rather than just hyperbole (or humor). Here's an excerpt from the leading case, Watts v. United States (1969): [D]uring a public rally on the Washington Monument grounds [in 1966, t]he crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Petitioner, who himself was 18 years old, entered into the discussion after one member of the group suggested that the young people present should get more education before expressing their views. [P]etitioner responded: "They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. 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." On the basis of this statement, the jury found that petitioner had committed a felony by knowingly and willfully threatening the President.... We do not believe that the kind of political hyperbole indulged in by petitioner fits within [the term "threat"].... The language of the political arena ... is often vituperative, abusive, and inexact. [Watts'] only offense here was "a kind of very crude offensive method of stating a political opposition to the President." Taken 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.... My sense is that the same applies here; and while the Secret Service does need to investigate all such statements, out of an abundance of caution, the speakers can't be prosecuted given the context. The speakers may also have another defense: Virginia v. Black (2003) also held that a statement can't be a punishable threat unless it's made "with the intent of placing the victim in fear of bodily harm or death." Thus, following Black, a statement is a punishable threat only if a reasonable listener would understand it as a threat of attack and the speaker intended that the listener get that impression. Before Black, there had been a lot of debate about whether such an intention is required, or whether negligence on the speaker's part is enough. (Under the negligence test, it's enough that a reasonable speaker would have recognized that a reasonable listener would see the statement as threatening, even if that wasn't the speaker's purpose. This is something of an oversimplification of the lower court caselaw, but it's close enough for our purposes, I think.) Oddly enough, the Supreme Court didn't discuss this debate, or explain why it was taking one side of it. Nonetheless, the Court did announce the likely-understanding-plus-intent requirement, and a plurality later kept stressing the speaker's intent as an important part of the analysis. So I think the Air America speakers are probably protected from legal punishment on those grounds, too (though of course this assumes that the speakers weren't intending to put the President or the Secret Service in fear, and that reasonable listeners would indeed understand the statement as a joke). This may leave some people with the question: What about all those signs in airports saying that even joking about bombs is a crime? I can't tell you for sure whether, following Black, someone can be prosecuted for his joke when (1) he doesn't intend to threaten anyone with the joke but (2) the joke is understandably interpreted as possibly serious. Perhaps courts would draw some distinction based on the joke's likely lack of political content, and the joke's potentially highly disruptive effects (the area may have to be closed down while the potentially bomb-filled luggage is isolated and then destroyed, and so on). But the speaker would have a decent defense based on Black, I think. And in any event, the Air America statement — a statement said about the President in a political context — would probably be protected by Watts, Black, or both.