Patrick Syring, apparently a former State Department foreign service officer, has been indicted for threatening Arab American Institute staff, in violation of 18 U.S.C. § 245(b)(2)(C) (using threats to intimidate and interfere with employment based on race and religion) and 18 U.S.C. § 875(c) (transmitting threats in interstate commerce). Here are the messages mentioned in the indictment (all dated from July 17, 2006 to July 29, 2006) (some paragraph breaks deleted):
[Voice mail to the Institute:] This is Patrick Syring. I just read James Zogby's statements online on the MSNBC website, and I condemn him for his anti-Semitism and anti-American statements. The only good Lebanese is a dead Lebanese. The only good Arab is a dead Arab. Long live the IDF. Death to Lebanon and death to the Arabs.
[E-mail to two Institute employees; all e-mails sent to work addresses:] Zogby's anti-Semitic, anti-American statements (and those of the AAI in general) are abhorrent, repulsive and disgusting. The only good Lebanese is a dead Lebanese (as the IDF knows and is carrying out in its security operations, God bless them.) Fuck the Arabs and Fuck James Zogby and his wicked Hizbollah brothers. They will burn in hellfire on this earth and in the hereafter.
[Voice mail to an Institute employee:] Hello Valerie, you fucking Arab American shit. James Zogby and you are all Hezballah supporters. The only good Arab is a dead Arab... You God [inaudible] bitch.
[E-mail to an Institute employee:] You are a fucking anti-Semitic Arab-American stooge who sympathizes with Hezballah terror. You and your Arab American Institute fuckers should burn in the fires of hell for eternity. The IDF is bombing Lebanon back into the stone age where it belongs. Arabs are dogs. Long live the State of Israel. Death to Arab American terrorists. The only good Lebanese is a dead Lebanese.
[E-mail to an Institute employee:] You are a fucking Arab American terrorist, a Hezbollah sympathizer pig. James Zogby is a vile evil anti-Semitic pig terrorist member of Hezbollah who is attempting to destroy the State of Israel. God Bless America[.] God Bless the State of Israel[.] The only good Lebanese is a dead Lebanese [a smiley face graphic]
[Voice mail to the Institute:] Hello, I'm Patrick I'm in Arlington VA, and I think James Zogby is worse than Osama bin Laden. Since he supports Hezballah, he's an anti-Semitic motherfucker, and the only good Arab is a dead Arab.
[E-mail to several Institute employees:] I condemn James Zogby and the AAI for perpetrating the murder and shootings at the Jewish Federation in Seattle on Friday July 28 (as well as the killings in Israel). You wicked evil Hezbollah-supporting Arabs should burn in the fires of hell for eternity and beyond. The United States would be safer without you. God Bless the State of Israel[.] God Bless America[.]
It seems to me that the messages are indeed punishable, precisely because they fall into the "true threats" exception to the First Amendment. But it's important to be precise about why this is so, and to see why this differs from protected statements that some people will burn in Hell, that some people (e.g., exploiters of the poor, abortion providers, child rapists) deserve to die, or that the capitalist stooges will be the first up against the wall when the revolution comes. Consider, by way of analogy, the Arizona Supreme Court's unanimous and correct decision in Citizen Publishing Co. v. Miller, 115 P.3d 107 (Ariz. 2005), that this letter to an Arizona newspaper was constitutionally protected:
We can stop the murders of American soldiers in Iraq by those who seek revenge or to regain their power. Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter.
After all this is a "Holy War" and although such a procedure is not fair or just, it might end the horror.
Machiavelli was correct. In war it is more effective to be feared than loved and the end result would be a more equitable solution for both giving us a chance to build a better Iraq for the Iraqis.
Here's my thinking: First, though the Syring messages are at times simply condemnation, and though "The only good Arab is a dead Arab" may in context be seen as chiefly a reference to what should be done in Lebanon in the Hezbollah War, it may also in context be seen as a personal threat to the recipients in particular.
Second, while ambiguity might cut in favor of protection in some contexts — consider the Arizona court's statement that "Given the letter's conditional nature and ambiguity, we do not believe that a reasonable person could view that letter as 'a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals'" — two related matters cut against this here:
(A) This was a letter addressed to particular people, which may reasonably make those people fear that they are in the writer's metaphorical crosshairs.
(B) The letter was sent just to those people, who were extremely unlikely to be persuaded or enlightened by the letter. The value of the letter to public debate — and the danger to public debate of punishing ambiguous statements — is thus considerably less than if it were a condemnation of Arabs or other large groups published to the public at large, which might have its views changed (whether we think in a morally sound or unsound direction) by such arguments as the letter may contain.
My sense is that these points, and especially (B), have to be a big part of the distinction between a punishable threat and protected advocacy. The Arizona court put this in a somewhat conclusory fashion, by saying that "Speech that is part of this sort of public discourse [newspaper publication] is far less likely to be a true threat than statements contained in private communications or in face-to-face confrontations." But it seems to me that a deeper analysis would reach the same result. Threats communicated privately to particular people are both more likely to be reasonably seen as individually threatening, and can be punished with less loss to public debate. (There are of course intermediate fact patterns, such as threats that mention particular people but are said in public, which I think should probably also be punishable, at least if they are relatively unambiguous. But here we have one end of the continuum, with the Arizona letter being the other.)
So Syring's letters — assuming the indictment provides the correct transcriptions, and doesn't omit important context — ought to be punishable. But it's important that any published decision upholding such punishment, or any public or legal consensus that emerges upholding such punishment, especially for ambiguous statements such as these ones, focus on the individualized nature of the threat (both that it mentioned individuals and that it was communicated to individuals). The analysis should be quite different if the statements were general, and distributed to the public at large, as in the Arizona case; the statements would still be morally reprehensible, but they should still be constitutionally protected.
"The only good Arab is a dead Arab"?
I remember back in the 70s and 80s in school arguing with self proclaimed Communists and telling them things like "The only good Commie is a dead Commie." Was that a threat? I don't think anyone took it as statement that I planned to attack anyone. Just as a very forcefully put statement that I felt their views were so disgusting that the world would be a better place if they were dead.
I think you need some kind of indication of an intent to act before you can take statements like these as threats.
Even harrassment is questionable. If someone walks up to someone collecting signatures for an anti-AA proposition and says something like "I think America would be better off if racists like you were all dead" is that a threat? It's rude and intimidating but I think it's protected political speech even though the person being addressed is unlikely to be persuaded.
If you are going to use that as a test you might also question whether an Anarchist yelling that all of the exploiters should be stood up against a wall and shot is likely to convince anyone.
Finally, just to show how absurd such a test is, imagine if instead of making these statements in private communications Mr. Syring made them on a soapbox outside the Arab American Institute and quickly drew a large, approving, and rowdy crowd. Would that be protected speech? I think there's a far greater argument for suppressing him in such circumstances given the obvious potential for violence.
I think it is fair to say that if someone sends a letter to Bush that says, "The only good President is a dead President," they can expect to spend time in jail for communicating a threat to the President. If protesters on Pennsylvania Ave. said this (and I have to say I have never seen "Death to Bush" signs at a US protest), the situation might be different. But then again, they would probably be locked up too, or at least have their speech suppressed.
As Prof. Volokh said, the former seems right, the latter does not.
I'm just wondering given the technology available that why didn't the Arab American Institute just block his email/phone number if they found his speech disagreeable? It is certainly doable.
And I'm trouble by muslims using our Western courts to silence dissenting opinions about Islam see
Alms for Jihad
As to the law governing these matters, how is being Arab a race or religion? Arabs are not a racial category (at least biologically), and we have Christian as well as Islamic Arabs. If anyone thinks that Arabs are a race then tell me what race, and what’s the evidence for that classification?
Now we sometimes hear about Arabs in the US shouting “death to the Jews,” or death to Israel? Has any Arab of Muslim been indicted solely for the kind of speech-crime in the US? They seem to get a pass in Sweden. For example,
You might be interested in this: On Libel, Truth, and Paranoia
And, after the jury decides, every appellate court will be privileged to second guess them.
But, in the end, there is no reasoned answer to the question whether these constitute threats--just emotional reactions disguised as reasoned answers.
As the Court rightly observed, (Emphasis added.)
Unburdened by knowledge of First Amendment precedent, Michael Friedman continues:Michael Friedman, meet Mr. Brandenburg V. Ohio. How this proves the "absurdity" of the Watts test -- which deals with direct threats, as opposed to inciting others to imminent lawless action -- is left as an exercise for readers who don't get out much, and probably shouldn't.
I think John nails it. I do see Volokh's legal argument, though. If I were the presiding judge, I might let this go to the jury, but it would be a very close question to my mind.
It is extremely important, to my mind, that all of the "death" comments mention either the IDF, Hezzballah, or both. This highlights the speakers emphasis on death and conflict in Israel and undermines the argument that the "dead Arabs" that the speaker wants so badly are the ones he's talking to rather than the Arabs he feels that Israel is at war against.
If you saw this email exchange acted out in real life (where any immediacy of the threat being carried out would be more "immediate") would it seem more threatening or less threatening? A man walks up to a group of pro-Hezzballah/anti-Israel protesters and says "all Hezzballah and those who support them should die." Is Volokh saying that that is unprotected speech? That would trouble me very much and seems totally inconsistent with how free speech is generally applied. "Death to [insert group]" is, sadly, a mainstay of modern political discourse.
If I were on the jury, there is no way I could vote to convict. I think this man is safe at trial.
So it's the actual likelihood of persuasion that matters? So conveying an argument against the existence of god to members of a religious organization would also fall afoul of this consideration?
Also what sort of standard is this? Is it that the speaker has to think that the recipient is particularly unlikely to be swayed or that they actually objectively be so? Either way it seems we run into huge problems. I suspect that most individual political commentary is motivated by outrage, indignation and the desire to tell those assholes/idiots/whatever exactly why they are wrong. So if we consider this as a matter of intention this sort of speech seems to fair no worse than many posts to this very blog. On the other hand if we try to evaluate the objective probability the recipient will be convinced we find ourselves in a complete morass. Depending on which of the recipients features we consider (say his race, education, background, things he has said in the past) we might get totally different ideas about his likelihood of being convinced and it just comes down to the question of who gets to choose the features we consider.
The bit about being less valuable to public debate doesn't seem much help either. If the first amendment is to give any protection at all it must protect those statements the public strongly wishes it could ban, i.e., those statements the judge is likely to view as being of particularly little importance to public debate. In other words this seems like nothing but a disguised way of sneaking in one's own judgment about what speech is important.
As far as your other consideration:
I'm somewhat more sympathetic but ultimately I'm not compelled. After all what is necessary is not that a reasonable person fear for their life on receiving these letters but that a reasonable person would interpret these letters as a threat.
I mean suppose I write a letter to a woman who lives across the street from me explaining how I obsessively watch her with my binoculars and professing my deep love for her. Certainly if I then go on at great length that suggests I am totally nuts as well as insanely obsessed with her a reasonable person in that situation might fear for their life but my letter does not fall into the true threats exception to the first amendment (tho maybe it could be regulated under harassment statutes..I just don't know).
Ultimately for these reasons I don't think you've established any justification for not giving these communications 1st ammendment protection. It's true that the recipients of these emails may reasonably have felt themselves to be in danger but only because the communications suggested the writer was a mentally unstable individual with an obsessive hatred of their ethnic group.
Patrick Syring is called a "former State Department foreign service officer". Was he "former" before made these calls and/or wrote these communiques or did he do some of this on the job? In other words, is he being called to task because of his job at the State Department, where he might have just been dismissed as a whacko if it were not for his job? Have there been other threats of a similar nature made against the staff of this organization and similar complaints have been made against the offenders?
A. Zarkov, I agree with you: Patric Syring is sane? That was certainly my first reaction!
I interned with a Congressman's office during college (a moderate GOPer) and as the interns job to collect the morning voice mails I frequently started my day off listening to things like this. We were instructed to them to the FBI (after consulting supervisory staff of course) when they we received messages insinuating or explicitly speaking about actual violence against the Congressman/Gov't/Our Staff, etc. I guess that is what forms the basis of my interpretation above.
This is as true as when an anti-Jewish Arab bigot says, "I can't be an antisemitic because Arabs are Semites, too."
Technically true, practically irrelevant. The comment is just a way to try to dodge the real question.
It's a feature, not a bug.
Beyond that, I'm a Jew, and I can certainly distinguish between some nut shouting "death to Jews!" as part of a rally and getting e-mails from one person specifically directed at me personally saying "Jews deserve to die, you dirty Jew bastard," etc. Not even a close case.
It is interesting that this case presumes--takes as a fact--that white people mean what they say.
Other cultures...that's just the way they talk, they don't mean anything by it and we should be more culturally aware. Not be freaked or anything.
The inevitable counterfactuals come to mind, and none of them lead to court. They lead to sensitivity training for the targets of the messages, should they complain.
I'm intrigued that you classify Jews as "white" -- Nazis and others wouldn't, but it's OK with me.
As to counterfactuals, I highly doubt that if a black employee, or Arab employee, had called a Jewish employee or series of Jewish employees and left those sorts of messages -- "all Jews deserve to die and you're a dirty Jew," etc. -- that this case would be handled any differently. Aside from the white-male victim card conservatives like to trot out for rhetorical purposes, do you have any evidence supporting a different conclusion?
I do not understand why the following statement shouldn't be punishable, since it's advocating a crime, as long as it seems a credible threat.
<i>"Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter."</i>
What would make it a credible threat? Well if there were a history of people acting on such incitements to murder. Do we have such a history. Well, yes. I think as a general rule we've see this kind of thing happen. Though rare there have been cases of Jewish extremists doing exactly what was related in the text.
I think cross burning were it not associated with actual behavior would be acceptable. Unfortunately it is a credible threat and is also meant to demean the standing of others in the community without regard to the truth. It's not like say burning a effigy of a child molester on your property. The idea of cross burning is that particular groups are inferior and deserve to be persecuted on that basis.
So I don't care if the letters were addressed to particular people. Anyone in the targeted group has standing as far as I'm concerned. Point A) is moot.
Which brings me to the Qur'an. It quite clearly defames me and advocates my murder. If taught as non-fiction I see it as the same as a death threat. There is ample history of individuals taking it's quite clear advocacy to murder my kind seriously and that history makes it a credible threat. All too credible.
I think that you should have included C) which is whether the statement is based on what a reasonable person would consider the truth. So it may be reasonable to advocate punishment for an individual who is a rapist but it is quite a different thing to advocate such actions against a person you are in no reasonable position to know is a rapist or have actual knowledge to the contrary.
I think it quite reasonable to realize that five random Muslims bear no guilt for random atrocity committed by other Muslims. Thus by my above rule advocating punishment for them is wrong. Whereas if one were advocating the same for the persons who actually committed the atrocities, well that's just fine.
The Qur'an is extremely loose in it's advocacy of punishment. It is quite clear that the gross generalizations of the Qur'an demean, defame, and advocate the punishment of innocent parties. Therefore I think that it should be against the law to espouse it's teachings as the truth. We need an injunction against such behavior.
Now I have no problem with people having Qur'ans and claiming it's a book of fiction. Nor do I have a problem with them using it as a historical document written during a less enlightened period with some good moral teachings and some errors. What I find objectionable is teaching it as infallible orders from Allah. That's what results in dead people and makes it a credible threat.
It's sort of like storing dynamite. If you store the Qur'an with the appropriate level of protective mockery and criticism then it is a fairly safe activity. I have one stored on my bookshelf this way. However if instead you take a young child and this is the only thing you feed him and tell him it is the absolute truth then you've stored the dynamite incorrectly. We have ample and reasonable experience with storing it that way and it leads to deaths.
In any event, "this case presumes" no such thing. Section 875(c) is a general-intent crime: the speaker need not intend to carry out the threat, nor even intend that his statements be perceived as threats. See, e.g., United States v. Himelwright, 42 F.3d 777, 783 (3d Cir. 1994); United States v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994), cert. denied, 115 S. Ct. 1826 (1996); United States v. DeAndino, 958 F.2d 146, 149 (6th Cir.), cert. denied, 505 U.S. 1206 (1992).
Instead, the test is whether an objectively reasonable recipient would perceive the statements as authentic threats of harm. Really stupid but credible practical jokes or other stunts violate the statute even if the speaker didn't mean what he said. A perfect example:
EV, you implicitly recognize the statements are not threats. Yes, the recipients may consider them threatening, but they are not threats. The recipients are likely to be intimidated, but intimidation alone is not a violation of the statute. The statements are expressly condemnations, very strong ones and over the line of polite or even reasoned discourse, but they are not threats and this is simply another example in my view of political correctness gone amuck.
See the advice given to cops and teachers when verbally assaulted with obscenities and threats by various minority groups. Be culturally aware that that's just the way they talk. They don't mean anything serious by it--although you should think about why they do it--and the kind of response that would be normal in the middle class world is inappropriate.
Quoting the law.... Right.
It is possible to quote law until the cows come home, but if the communicator is one of several minority groups, the recipient would be told to forget it. Law notwithstanding.
Law's one thing. Real world's another. I am related by blood or marriage to about half a dozen teachers and I get to look at the various in-service stuff that is out there, even if my relations don't actually receive it.
There have been a number of situations on campuses in the last couple of years in which Jews have been threatened and even assaulted by the combo of leftards and Islamists. Little happens to the perps. Of course, it might not be cultural sensitivity. It could be the possibility of stuff getting blown up. Any which way, this is not a law which can be expected to be applied without reference to the identity group of the perps.
"I wish you were dead," is not a threat.
"I will kill you," is a threat.
"The only good Arab is a dead Arab," is much closer to "I wish you were dead," than it is to "I will kill you." Indeed, you can make a better argument that "Fuck James Zogby" threatens a sexual assault than you can that "The only good Arab is a dead Arab" is an actual threat.
There is no doubt that telling someone you wish they were dead will make them uncomfortable. But that, of course, is not the test. Douglas' concurrence in Watts is pretty much on point, especially where he analyzes the sorry examples of convictions that were upheld under the statute at issue there.