50 Years Ago, the Court Enters the True Threats Thicket in Watts v. United States

speech, protest

Watts v. United States specifically singled out threats against certain high-ranking federal officials, including the chief executive.

When those familiar with the First Amendment and U.S. Supreme Court history think of 1969, many may naturally think of the seminal student speech decision Tinker v. Des Moines Independent Community School District[1] or the court’s speech-protective standard for incendiary speech in Brandenburg v. Ohio.[2]  After all, the Tinker decision ushered in a new era in which students challenged school authorities on everything from the censorship of newspapers and punishment for student protests to discipline for long hair and citations for dress code violations.[3]  Similarly, the Brandenburg decision was hailed by free-speech scholar Harry Kalven as the case in which First Amendment law “may finally have worked itself pure.”[4] The late, great scholar Robert M. O’Neil noted that “Brandenburg established a remarkably durable and very stable protection for government regulation of advocacy and, more broadly, for all political expression.”[5]

But, in 1969, the U.S. Supreme Court rendered another First Amendment decision that also is a seminal precedent in free-speech jurisprudence. That decision is Watts v. United States, a ruling in which the high court first addressed the topic of true threats.[6]  For many years, Watts was the “only true threat” decision ever rendered by the Supreme Court.[7]

The Plight of Robert Watts

Robert Watts was an 18-year-old African-American male who attended a W.E.B. DuBois Club meeting at the Sylvan Theater on the grounds of the Washington Monument in August 1966.[8] The meeting was part of an anti-war rally but also focused on other subjects. Watts was in a group discussing police-community relations and the subject of police brutality.[9] In the course of the conversation,Watts uttered the following remarks:

“They always holler at us to get an education and yet I have already received my draft classification as 1-A and I have got to report this Monday coming for my physical. 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. (President Lyndon B. Johnson). They are not going to make me kill my black brothers.”[10]

An undercover government official overheard the remark and reported it. The officer believed Watts might be a threat to the president. The next day, Secret Service agents arrested Watts for uttering a true threat against the president, an offense criminalized under federal law.[11]

The law, passed in 1917, specifically singled out threats against certain high-ranking federal officials, including the chief executive. It provided in pertinent part:

“Whoever knowingly and willfully … [makes] a threat to take the life of or to inflict bodily harm upon the president of the United States, the president-elect, the vice president or other officer next in the order of succession to the office of the president of the United States … shall be fined not more than $1,000 or imprisoned not more than five years, or both.”[12]

Prior to his trial, Watts argued for the dismissal of the indictment against him because his words did not constitute a threat against the president.[13] The trial judge denied the motion and the case proceeded to a jury trial. At the close of the evidence, Watts’ attorney argued for a judgment of acquittal. He said there was “absolutely no evidence” that Watts had uttered a threat and that Watts’ statements were a “kind of very crude offensive way of stating a political opposition to the president.”[14]

The trial judge instructed the jury after the trial and before deliberations: “It is the making of the threat, not the intent to carry it out, that violates the law.”[15] The jury found Watts guilty of violating the law.

A Divided Federal Appeals Court

Watts appealed the case to the United States Court of Appeals for the D.C. Circuit. The appeals court affirmed his conviction by a 2-1 vote. The majority decision was authored by none other than Judge Warren E. Burger, whom President Richard Nixon later elevated to the position of Chief Justice of the U.S. Supreme Court because he was a law and order jurist. Famed jurist J. Skelly Wright, perhaps best known for his opinions against segregation in his native New Orleans,[16] authored a poignant dissenting opinion.

Burger emphasized the importance of the federal anti-threat statute. “There are unique considerations surrounding the president of the United States,” he wrote. “No person in the world, perhaps, is so comprehensively guarded. Yet, this intensive protection has not prevented the assassination of four presidents.”[17]

Burger emphasized that to be convicted under the law, Watts did not have to actually intend to assassinate President Johnson — it was enough that he willfully uttered the words that he did. He reasoned that “it was the threat which must be ‘knowingly and willfully’ made and not that the intent to execute the content of the threat be an element.”[18]

Watts also argued that his statements could not be considered a threat under the federal law because he made a conditional statement with the word “if.” In other words, his statement about putting L.B.J. in the scope of his rifle would occur only if he was sent to fight in Vietnam.[19]

Burger also swept aside Watts’ argument that his comments were met with laughter and applause from his listeners. To Judge Burger, this was immaterial. “History records that applause and laughter frequently greeted Hitler’s predictions of the future of the German Jews.”[20] Ultimately, Burger concluded that “the First Amendment does not prevent proscription of utterances that comprise knowing and willful threats to the life or safety of the president”[21] and that a jury properly could determine that Watts’ statements constituted a true threat.[22]

Judge Wright dissented. He believed that to violate the statute, an individual must have specific intent to harm the president.[23] “Where the allegation is that the defendant, by his threat, incited others to kill the president, it is clear that specific intent to bring about this result must be shown.”[24] Wright believed that to establish a true threat, the prosecution must show that the defendant had both the objective and subjective intent to carry out the threat. He would leave the question of subjective intent to the jury, but the court would review to determine if the statement met the element of objective intent.[25]

Viewing Watts’ statements, Wright viewed them as expressing a “rhetorical idea” rather than a threat.[26] He also emphasized the conditional nature of Watts’ statement and the audience’s response.[27] Wright concluded that Watts’ statement was not a true threat but “a crude, even offensive, rhetorical device.”[28]

Supreme Court Opinion

Watts appealed to the U.S. Supreme Court. He had outstanding legal counsel in Joseph Forer, a civil liberties attorney who was a founder of the National Lawyers Guild and no stranger to the U.S. Supreme Court.[29] Forer had argued several First Amendment cases before the high court, including several involving repression against Communists. Furthermore, the American Civil Liberties Union filed an amicus brief before the court through the team of Ralph J. Temple, Melvin L. Wulf and Lawrence Speiser.

The court decided the case without oral argument and issued a per curiam opinion. The court upheld the constitutionality of the statute, writing that the country “undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its chief executive and in allowing him to perform his duties without interference from threats of physical violence.”[30]

The court emphasized that the government must prove that Watts uttered a true threat.[31] The court wrote that the government failed to prove such, characterizing Watts’ language as “political hyperbole.”[32] The court concluded:

“We agree with [Watts] that his 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.”[33]

Justice William O. Douglas authored a concurring opinion that emphasized how prosecutions under the statute often were wielded against political dissidents. He compared the statute to the Alien and Sedition Acts of 1798 and prosecutions under the Espionage Act of 1917.[34] Douglas, as consistent a defender of free speech in the history of American jurisprudence, concluded: “Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.”[35]

Justice Abe Fortas dissented, questioning the court’s decision to decide the case without oral argument. Justice John Marshall Harlan II joined that dissent.[36]

Treatment of Watts and Development of True Threat Jurisprudence

The court in Watts did not create a clear legal test for determining when speech crosses the line from protected political speech to unprotected true threat. Instead, it held that statutes criminalizing speech must be “interpreted with the commands of the First Amendment clearly in mind.”[37]

However, the court did emphasize (1) the context in which Robert Watts spoke, (2) the reaction of his listeners and (3) the conditional nature of his statement. These three points became known as the “Watts factors.”[38]

In 1982, the Supreme Court ruled that Charles Evers, brother of slain Mississippi civil rights activist Medgar Evers, did not utter a true threat when he used highly charged language against those who would not support a boycott of white-owned businesses.  For example, Evers uttered, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”[39]

The court determined that this was political advocacy instead of a true threat, or the cousin of a true threat —  fighting words and incitement to imminent lawless action. The decision added little to true-threats jurisprudence, but “added to the Watts legacy that charged political advocacy is unlikely to rise to the level of a true threat.”[40]

The court significantly added to true-threats jurisprudence more than two decades later in the cross-burning case, Virginia v. Black.[41] The court examined the convictions of two sets of defendants for violating a law that criminalized the burning of a cross with the intent to intimidate others. Writing for the majority, Justice Sandra Day O’Connor explained, ‘“True threats encompass those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”[42] The court explained that burning a cross with the intent to intimidate others is a form of a true threat.

However, the court did not settle the question of what level of intent is required on the part of the speaker — to cross the line into a true threat. Many in the First Amendment community hoped the court would resolve this question in Elonis v. United States, involving the true-threat prosecution of a man who purportedly rapped threats to his girlfriend.[43] Unfortunately, the court did not answer the question, though it did find that prosecutors must prove more than a defendant was negligent to convict under a threat statute.[44] Thus, confusion remains. First Amendment expert Rod Smolla explains: “Lower court decisions remain divided nationally on whether the First Amendment’s true-threat doctrine is objective, subjective, or both.”[45]

This caused a Florida court to impose a 15-year sentence on a man who allegedly threatened to blow up a convenience store.[46] However, a prosecutor in the case acknowledged that the man may have been “just a harmless drunk guy at the beach.”[47] Justice Sonia Sotomayor agreed with her colleagues on the Supreme Court not to hear the Florida case but warned that the court “should also decide precisely what level of intent suffices under the First Amendment — a question we avoided two terms ago in Elonis.”[48]

Conclusion

In the age of social media, true threat prosecutions are arguably even more important given the sheer amplification of all types of speech. Prosecutors, defense attorneys, defendants and judges need to know exactly what level of intent is required in true threat cases. It is hard to argue with Colorado law professor and free speech expert’s Helen Norton’s assessment: “Clarification of the court’s true-threats jurisprudence is long overdue.”[49]

What is also long overdue is an appreciation of the importance of the court’s first foray into the true threat doctrine — Watts v. United States.  On its 50-year anniversary, the case should be celebrated for emphasizing the importance of politically charged advocacy and ensuring that such advocacies are not misconstrued as true threats.

David L. Hudson Jr., a visiting associate professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Documents Decoded: Freedom of Speech” (ABC-CLIO, 2017).

[1] 393 U.S. 503 (1969).

[2] 395 U.S. 344 (1969).

[3] See generally, David L. Hudson Jr. Let the Students Speak: A History of the Fight for Free Expression in American Schools. (Beacon Press, 2011).

[4] Harry Kalven, Professor Ernst Freund and Debs v. United States, 40 U. Chi. L. Rev. 235, 236, n. 6 (1973).

[5] Quoted in David L. Hudson Jr. Landmark Case Set Precedent for Advocating Force, Freedom Forum Institute, June 9, 2009.

[6] 394 U.S. 705 (1969).

[7] Jordan Strauss, CONTEXT IS EVERYTHING: TOWARDS A MORE FLEXIBLE RULE FOR EVALUATING TRUE THREATS UNDER THE FIRST AMENDMENT, 32 Sw. U. L. Rev. 231, 243 (2003).

[8] Watts v. United States, 402 F.2d 676, 686 (J. Wright, dissenting).

[9] Watts, 402 F.2d at 686 (J. Wright, dissenting).

[10] Watts, 402 F.2d at 686 (J. Wright, dissenting).

[11] Watts, 402 F.2d at 677-78.

[12] 18 U.S.C. 871(a).

[13] Watts, 402 F.2d at 678.

[14] Watts v. United States, 394 U.S. 705, 706-07 (1969).

[15] Watts, 402 F.2d at 678.

[16] Marjorie Hunter, Judge J. Skelly Wright, Segregation Foe, Dies at 77, The New York Times, Aug. 8, 1988.

[17] Watts, 402 F.2d at 683.

[18] Watts, 402 F.2d at 680.

[19] Watts, 402 F.2d at 680.

[20] Watts, 402 F.2d at 681.

[21] Watts, 402 F.2d at 682

[22] Watts, 402 F.2d at 684.

[23] Watts, 402 F.2d at 691 (J. Wright, dissenting).

[24] Watts, 402 F.2d at 691 (J. Wright, dissenting).

[25] Watts, 402 F.2d at 692 (J. Wright, dissenting).

[26] Watts, 402 F.2d at 692 (J. Wright, dissenting).

[27] Watts, 402 F.2d at 693 (J. Wright, dissenting).

[28] Watts, 402 F.2d at 693 (J. Wright, dissenting).

[29] David L. Hudson Jr. “Joseph Forer,” in First Amendment Encyclopedia.

[30] Watts, 394 U.S. at 707.

[31] Watts, 394 U.S. at 708.

[32] Watts, 394 U.S. at 708.

[33] Watts, 394 U.S. at 708.

[34] Watts, 394 U.S. at 710-11 (J. Douglas, concurring).

[35] Watts, 394 U.S. at 712 (J. Douglas, concurring).

[36] Watts, 394 U.S. at 712 (J. Fortas, dissenting).

[37] Watts, 394 U.S. at 707.

[38] David L. Hudson Jr. “The Watts Factors,” in the First Amendment Encyclopedia.

[39] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 902 (1982).

[40] David L. Hudson Jr. “True Threats,” Freedom Forum Institute, May 12, 2008.

[41] 538 U.S. 343 (2003).

[42] 538 US. at 359.

[43] 575 U.S. _ (2015).

[44] P. Brooks Fuller, The Angry Pamphleteer: True Threats, Political Speech, and Applying Watts v. United States in the Age of Twitter, 21 Comm. L. & Pol’y 87, 90 (2016).

[45] Quoted in David L. Hudson Jr. “When do rants exceed First Amendment boundaries and become true threats? ABA Journal, August 2018.

[46] Perez v. Florida, 580 U.S. _ (2017).

[47] Quoted in David L. Hudson Jr. “Justice Sotomayor Expresses Concern Over Court’s True Threat Jurisprudence,” Freedom Forum Institute, March 7, 2017.

[48] Quoted in David L. Hudson Jr. “Justice Sotomayor Expresses Concern Over Court’s True Threat Jurisprudence,” Freedom Forum Institute, March 7, 2017.

[49] Quoted in David L. Hudson Jr. “When do rants exceed First Amendment boundaries and become true threats? ABA Journal, August 2018.

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