Column: Death Threats and Political Advocacy (New York Law Journal)

By Christopher Dunn — Our historical commitment to free speech is put to its greatest test when advocates perceive the most dire threats and resort to the most extreme political rhetoric. The tension between allowing robust political speech while maintaining public safety was perfectly captured by the mistrial declared earlier this month in the federal prosecution in Brooklyn of a right-wing radio personality who, in an Internet blog, seemingly endorsed the killing of three Seventh Circuit judges who had issued a Second Amendment ruling that angered the radio host.

It is well-established that people can be prosecuted for threatening speech, but matters become much murkier when the threats come in the form of political advocacy. Further clouding the picture is the fact that so much extreme political speech, as was true in the Brooklyn case, now appears on the Internet, which makes threats more attenuated but also much more widely circulated.

In the last 40 years, the Supreme Court twice has held that the First Amendment protects threatening speech in the context of heated political advocacy. More recently, the Ninth Circuit en banc rejected a First Amendment defense in a notorious case involving speech associated with the murders of abortion providers. These cases frame the issues presented by the Brooklyn case, which is scheduled to be retried in March.

Threatening the President

By statute, it is a federal crime to “knowingly and willfully” make a “threat” to kill the president of the United States. In Watts v. United States, the Supreme Court recognized the limits the First Amendment imposes on the statute.

The defendant Robert Watts was 18 years old in 1966 when he attended a political rally on the grounds of the Washington Monument. The crowd broke up into discussion groups, one of which included “an investigator for the Army Counter Intelligence Corps.” In response a group member’s suggestion that young people needed to educate themselves better before expressing their views, Watts threatened the life of President Lyndon Johnson:

They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle, the first man I want to get is L.B.J.

Watts was convicted, but the Supreme Court reversed. Though finding the statute constitutional on its face, the Court immediately recognized the constitutional dilemma it presented: “[A] statute such as this, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.” And to honor this distinction, the Court ruled the statute had to be construed as applying only to what could be characterized as a “true threat.”

We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The language of the political arena, like the language used in labor disputes is often vituperative, abusive, and inexact. We agree with petitioner 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.

Threats and Racial Boycotts

A sharper example of the conflict between the First Amendment and threats in the political arena arose in the Court’s 1982 decision in NAACP v. Claiborne Hardware Co. That case centered on a racial boycott that local NAACP leaders organized in 1966 against white-owned businesses in Claiborne County, Miss.

The boycott started after local officials rejected broad demands for equal treatment of blacks, including desegregation of public schools and facilities, the hiring of black police officers, inclusion of blacks on juries, and an end to verbal abuse by white law-enforcement officials. One way in which the boycott was enforced was to station “store watchers” outside of white businesses to identify blacks who patronized the businesses. The names of those who violated the boycott were read at meetings of the Claiborne County NAACP and published in a paper called the “Black Times.” Those persons “were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites.”

The boycott came with some violence directed at boycott violators, including two cases where gun shots were fired at a house and a third where a brick was thrown through a windshield. Tensions peaked in April 1969 after a black man was shot and killed in an encounter with two local police officers. On April 19 Charles Evers, the NAACP official leading the boycott, warned that boycott violators would be “disciplined” by their own people and that the sheriff could not sleep with violators at night. The next day Evers gave another speech to several hundred people, during which he warned, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”

The white business owners sued, but the Supreme Court unanimously rejected their claims. Though it recognized the threatening potential of Evers’s speeches, the Court concluded they were protected by the First Amendment, relying on the fact there had been no finding that violence had followed the speeches:

If that language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that unlawful conduct. In this case, however… the [trial court] made no finding of any violence after the challenged 1969 speech. Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. 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. To rule otherwise would ignore the “profound national commitment” that “debate on public issues should be uninhibited, robust, and wide-open.”

Moreover, the Court added, “[T]here is no evidence – apart from the speeches themselves – that Evers authorized, ratified, or directly threatened act of violence.”

“The Nuremberg Files” and Abortion Murders

The most important ruling since Claiborne Hardware involving the conflict between extreme political rhetoric and proscriptions against violence is the Ninth Circuit’s 2002 en banc decision in Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists. That case involved “Deadly Dozen” posters that identified abortion providers, accused them of crimes against humanity, and provided home addresses. In addition, similar information about abortion providers was included in a “Nuremberg Files” posted on the Internet; one section listed approximately 200 people as “ABORTIONISTS: the shooters” and bore the following legend: “Black font (working); Greyed-out Name (wounded); Strikethrough (fatality).” In the two years before the release of the Deadly Dozen posters and the web posting, three abortion doctors had been murdered after similar posters were released identifying them, and all three were listed on the website with their names crossed out.

The abortion-service provider Planned Parenthood and several of its understandably terrified doctors filed suit under the Freedom of Access to Clinic Entrances Act, a federal statute intended to protect abortion clinics from intimidation and violence. A jury awarded substantial damages, and the District Court entered a broad injunction governing the posters and the website. Over a bitter dissent from some of the court’s most liberal members, the Ninth Circuit, sitting en banc, affirmed.

The central issue in the case was whether the posters and website constituted “true threats” so as to be outside the First Amendment. The plaintiffs did not claim the defendants’ speech had incited violence, and it was undisputed that nothing in the posters or website alone amounted to a true threat. Rather, their contention was that, when viewed in the context of the earlier murders and the undisputed fear experienced by the plaintiffs, the posters and website crossed the constitutional line.

The Ninth Circuit accepted this approach. With respect to the posters, it reasoned that, even if they were pure political advocacy at the outset, they “acquired currency as a death threat” after the murders. As for the Nuremberg Files, the court suggested this was a closer call but nonetheless held they were not protected as political expression in light of their inclusion of murdered doctors with their names crossed out.

The dissenters responded that the anti-abortion activists’s speech could not qualify as a true threat because that concept encompassed only violence controlled by the speaker, not third parties. And they pointed to Claiborne Hardware and the Court’s reliance on the lack of violence following Evers’s threatening speeches as establishing that the posters and website were fully protected by the First Amendment. Notably, the Supreme Court refused to hear the case.

Looking Forward in Brooklyn

The Brooklyn prosecution that ended in mistrial earlier this month is of Harold Turner, a conservative radio host. In response to a June 2009 ruling from Seventh Circuit Judges Frank Easterbrook, Richard Posner, and William Bauer upholding two gun-control ordinances against a Second Amendment challenge, Turner reportedly wrote in an Internet blog, “Let me be the first to say this plainly: These judges deserve to die.” He added, “Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions.” He also said “an example” should be made of the three to send a message to the rest of the federal judiciary: “Obey the Constitution or die.” Finally, he supplied the judges’s photographs, phone numbers, work addresses, and courtroom numbers.

The federal government charged Turner with violating a federal statute comparable to the presidential threat statute at issue in Watts. In October the District Court rejected Turner’s argument that the indictment should be dismissed on First Amendment grounds, concluding that his statements qualified as incitements to imminent violence. In doing so, the court invoked a series of violent incidents – none of which the Turner had anything to do with – and its perusal of the Internet:

In an era when physicians have been murdered in their places of worship; families of Judges have been slain; a Judge of the Eleventh Circuit Court of Appeals and State Court Judges have been blown up or shot; a Federal Courthouse ripped apart by homemade explosives, all in the name of political dissent or religious fanaticism, it cannot be said that Defendant’s statements are unlikely to incite imminent lawless action.

This Court cannot ignore the audience to whom the alleged threats were communicated… A casual search of the Internet reveals a plethora of blogs and web pages overflowing with hate filled speech, often praising the Defendant for his alleged statements and calling for further action by like-minded individuals.

This discussion aptly captures the dilemma presented by this case, which likely will end up in the Second Circuit if Turner is convicted when he is retried in March. On the one hand, extreme political positions have led to violence. On the other hand, our society is full of extreme political rhetoric, and the Internet has vastly expanded the ability of people to convey this speech to huge audiences. Our challenge is to resist the pressure to mistake the rhetoric for the violence.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.