First Amendment scholar David Hudson’s article in the August 2018 issue of the ABA Journal discusses the limits of First Amendment protection for speech.
True threats are not protected in part because of the fear and disruption they cause in their recipients. “Speech that places a victim in fear for his or her physical safety is deeply harmful in that it disrupts the target’s life and may deter him or her from engaging in key life activities,” says University of Colorado Law School professor Helen Norton, who writes frequently on First Amendment topics. “Indeed, true threats may themselves undermine First Amendment values by silencing the speaker’s target.”
The push to combat threats is understandable. The problem is discerning the boundaries between protected speech and unprotected true threats.
Hudson stresses the lack of clarity in this area of the law.
A review of lower court decisions indicates a hodgepodge of different results:
• The Supreme Court of South Dakota recently upheld the conviction of a man for threatening a judicial officer by stating: “Well, that deserves 180 pounds of lead between the eyes,” and “Now I see why people shoot up courthouses.” State v. Draskovich (Nov. 21, 2017).
• A federal district court in Nebraska ruled that the defendant’s statement to an employee at a Social Security office could be considered a true threat: “If you fuck with my family, I’m going to fuck with you.” U.S. v. Schweitzer (Nov. 28, 2017).
• The Connecticut Supreme Court ruled that a man’s statement to his brother—“If you go into the attic, I will hurt you”—could be considered a true threat and denied the defendant’s motion to dismiss. State v. Pelella (Oct. 10, 2017).
• An Illinois appeals court reversed the threat conviction of a man who left the following voicemail on a public defender’s phone: “There is not a day that goes by since I was sentenced at that courthouse that I have not dreamed about revenge and the utter hate I feel for the judge. … There’s not a day that goes by that I don’t pray for the death and destruction upon the judge and upon every single person who sentenced me.” People v. Wood (Nov. 20, 2017).
• A Kansas appeals court upheld the threat conviction of a man who told his mother: “Try to call the sheriff now, bitch. … If I’m going to be on the streets, then you’re going to be on the streets because I’m going to burn your shit up. Then I am going to be back this afternoon and you ain’t going to like what I’m bringing for you.” State v. Johnson (Dec. 15, 2017).
The full article can be read here.