Threats of Violence Against Individuals

Threats of Violence Against Individuals.—The Supreme Court has cited three “reasons why threats of violence are outside the First Amendment”: “protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.”980 In Watts v. United States, however, the Court held that only “true” threats are outside the First Amendment.981 The defendant in Watts, at a public rally at which he was expressing his opposition to the military draft, said, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.”982 He was convicted of violating a federal statute that prohibited “any threat to take the life of or to inflict bodily harm upon the President of the United States.” The Supreme Court reversed. Interpreting the statute “with the commands of the First Amendment clearly in mind,”983 it found that the defendant had not made a “true ‘threat,”’ but had indulged in mere “political hyperbole.”984

In NAACP v. Claiborne Hardware Co., white merchants in Claiborne County, Mississippi, sued the NAACP to recover losses caused by a boycott by black citizens of their businesses, and to enjoin future boycott activity.985 During the course of the boycott, NAACP Field Secretary Charles Evers had told an audience of “black people that any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.”986 The Court acknowledged that this language “might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence ....”987 Yet, no violence had followed directly from Evers’ speeches, and the Court found that Evers’ “emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in Brandenburg… An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”988 While holding that, under Bradenburg, Evers’ speech did not constitute unprotected incitement of lawless action,989 the Court also cited Watts, thereby implying that Evers’ speech also did not constitute a “true threat.”990

980 R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).

981 394 U.S. 705, 708 (1969) (per curiam).

982 394 U.S. at 706.

983 394 U.S. at 707.

984 394 U.S. at 708.

985 458 U.S. 886 (1982). Claiborne is also discussed below under “Public Issue Picketing and Parading.”

986 458 U.S. at 900, n.29. See id. at 902 for a similar remark by Evers.

987 458 U.S. at 927.

988 458 U.S. at 928.

989 Brandenburg v. Ohio, 395 U.S. 444 (1969). Brandenburg is discussed above under “Is There a Present Test?”

990 Claiborne, 458 U.S. at 928 n.71.

In Planned Parenthood v. American Coalition of Life Activists, the en banc Ninth Circuit, by a 6-to-5 vote, upheld a damage award in favor of four physicians and two health clinics that provide medical services, including abortions, to women.991 The plaintiffs had sued under a federal statute that gives aggrieved persons a right of action against whoever by “threat of force . . . intentionally . . . intimidates any person because the person is or has been . . . providing reproductive health services.” The defendants had published “WANTED,” “unWANTED,” and “GUILTY” posters with the names, photographs, addresses, and other personal information about abortion doctors, three of whom were subsequently murdered by abortion opponents. The defendants also operated a “Nuremberg Files” website that listed approximately 200 people under the label “ABORTIONIST,” with the legend: “Black font (working); Greyed-out Name (wounded); Strikethrough (fatality).”992 The posters and the website contained no language that literally constituted a threat, but, the court found, “they connote something they do not literally say,” namely “You're Wanted or You're Guilty; You'll be shot or killed,”993 and the defendants knew that the posters caused abortion doctors to “quit out of fear for their lives.”994

The Ninth Circuit concluded that a “true threat” is “a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person.”995 “It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat.”996

991 290 F.3d 1058 (9th Cir. 2002) (en banc), cert denied, 123 S.Ct. 2637 (2003).

992 290 F.3d at 1065.

993 290 F.3d at 1085.

994 290 F.3d at 1085.

995 290 F.3d at 1077.

996 290 F.3d at 1075.

Judge Alex Kozinski, in one of three dissenting opinions, agreed with the majority’s definition of a true threat, but believed that the majority had failed to apply it, because the speech in this case had not been “communicated as a serious expression of intent to inflict bodily harm....”997 “The difference between a true threat and protected expression,” Judge Kozinski wrote, “is this: A true threat warns of violence or other harm that the speaker controls.... Yet the opinion points to no evidence that defendants who prepared the posters would have been understood by a reasonable listener as saying that they will cause the harm.... Given this lack of evidence, the posters can be viewed, at most, as a call to arms for other abortion protesters to harm plaintiffs. However, the Supreme Court made it clear that under Brandenburg, encouragement or even advocacy of violence is protected by the First Amendment....”998 Moreover, the Court held in Claiborne that “[t]he mere fact the statements could be understood ‘as intending to create a fear of violence’ was insufficient to make them ‘true threats’ under Watts.”999

997 290 F.3d at 1089 (emphasis added by Judge Kozinski).

998 290 F.3d at 1089, 1091, 1092 (emphasis in original).

999 290 F.3d at 1094.

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