Threats and Free Speech

Few areas of First Amendment law illustrate the importance of context as well as that of threatening statements. The rule is straightforward: There is no First Amendment protection for threats, a classic example of an exception to the general rule of free speech. However, an alleged threat must be looked at in context to determine whether it is a ‘‘true’’ threat or just hyperbole, which is not excepted from free speech protection. In Watts v. United States, 394 U.S. 705 (1969), a speaker at an antiwar rally on the Washington Monument grounds, after noting his 1-A draft classification, said, ‘‘If they ever make me carry a rifle, the first man I want to get in my sights is LBJ.’’ A jury found this statement to threaten President Lyndon B. Johnson. The Supreme Court overturned the conviction, saying that, viewed in context, the statement was not a threat but a ‘‘crude, offensive’’ yet protected political statement.

The Supreme Court has also ruled that speech intended to have a coercive impact, such as urging a boycott, is protected speech and not a threat, even if it creates an uncomfortable or menacing environment (NAACP v. Claiborne Hardware, 458 U.S. 886, 1982). Thus, an anti-abortion group that asserts that there will be divine retribution for those who engage in abortion is speaking words protected by the First Amendment, as it is when if it refuses to condemn the murder of abortion providers by people unaffiliated with their group. However, urging specific acts of violence against abortion providers or making statements that indicate approval of such acts and encouraging more of them in the future (noting possible targets) probably would be considered a threat and unprotected speech (see Planned Parenthood v. American Coalition of Life Activists, 244 F.3d 1007, 2001).

When political causes are involved, robust debate will be allowed notwithstanding the discomfort it may cause those who are verbally attacked or a more dispassionate audience. The policy is easily understood. Unless the threat exception to free speech is rigorously limited to direct and credible threats against specific targets, the exception could fairly easily become a convenient vehicle for prohibition of unpopular views under the guise of public protection or a justification for government punishment of strongly expressed unpopular opinions.

Conversely, no legitimate free speech purpose would be advanced by giving true threats—statements advocating imminent illegal conduct—First Amendment protection. 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’’ (Virginia v. Black, 538 U.S. 343, 2003). In that case, the Supreme Court held that burning a cross constituted a true threat only when it could be shown that the burning was ‘‘used to intimidate.’’

Relatively mild words may be considered threatening in a particular context. For example, an employer’s comments that unionization of its work force may cause the plant to close, in the context of an election to unionize, may be ruled a threat. The key to determining whether a true threat has been made is to focus on the question: ‘‘What did the speaker intend and the listener understand?’’ (NLRB v. Gissel Packing Co., 395 U.S. 575, 1969). It is not the literal meaning of the words but their context that is paramount.

GERALD J. THAIN

References and Further Reading

• NAACP v. Claiborne Hardware, 458 U.S. 886 (1982).
• NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
• Planned Parenthood v. American Coalition of Life Activists, 244 F.3d 1007 (9th Cir. 2001).
• Virginia v. Black, 538 U.S. 343 (2003).
• Watts v. United States, 394 U.S. 705 (1969).