Joe Ward, Aaron McFarland, Jennifer Price, and Aaron Jacobs
Introduction
Imagine you are walking down a busy sidewalk. As you walk
by a large man, you accidentally brush against his shoulder. “Watch
where you’re going!” the man snarls.
“You bumped into me,” you reply.
“Boy, you just watch what you say, or I’ll tear you apart limb
from limb,” the man says. Clearly, he has threatened you with violence.
Is his threat protected under the First Amendment?
Now, imagine you are at a party. The conversation turns
to politics, which escalates into a heated debate. “People should
just leave Clinton alone,” someone says. “His private life is his
business.”
You jokingly reply, “You must be crazy. I should just shoot
Bill Clinton in the head-I don’t think that robots like Al Gore are programmed
to lie to the American people.” Could you be prosecuted for these
comments, or does the First Amendment protect you?
Imagine you are outside an abortion clinic, handing out pro-life
leaflets to passersby. One of your fellow protesters gets into a
heated debate with a woman who is heading to the clinic to have an abortion.
The woman is threatened, and decides not to patronize the clinic.
The doctors get upset-the protesters are taking away their business, they
argue. They file for an injunction against you and your group.
Can a court grant an injunction that revokes your right to hand out leaflets
simply because one member of the group threatened that woman?
These questions, which are often very complex, are the types
of issues that the courts must deal with often. Where is the line
drawn? How can the courts balance freedoms guaranteed in the Constitution
while still ensuring social order?
To begin, one must analyze how the courts have dealt with threats on
their most basic level-from one private citizen to another. From
there, one must explore the question of threats against the highest government
officials like the President. Does the target of the threat make
a difference? Finally, one must look at the more complex issue of
petitioning, boycotts, and injunctions. What, if anything, can the
court do to prevent threats before they occur?
The Origin and Evolution of “Fighting Words”
With regards to citizens protection from personal threats, the
First Amendment was again revised with the landmark case Chaplinsky v.
State of New Hampshire, 315 U.S. 568 (1942). Here, the United States
Supreme Court ruled that “fighting words” were not protected under the
First Amendment.
The facts that revolve around Chaplinsky are as such: Chaplinsky was
distributing literature on the streets of Rochester, New Hampshire when
several local citizens complained to the City Marshall that Chaplinsky
was denouncing all religion. The Marshall warned Chaplinsky that
the crowd was getting restless, but also informed the crowd that he was
lawfully engaged. Later that afternoon, another police officer came
to the scene of the demonstration and began taking Chaplinsky to the police
station, never telling him he was under arrest. Upon receiving the
news that he was being arrested, Chaplinsky spoke the following words:
“You are a god-damned racketeer, and a damned fascist and the whole government
of Rochester are Fascists or agents of fascism.” Here, the Court
ruled in favor of New Hampshire. The Court ruled that:
“There are certain… classes of speech, the prevention and punishment
of which have never been thought to raise any Constitutional problem.
These include the lewd and obscene, the profane, the libelous, and the
insulting or ‘fighting’ words- those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace”.
This brings up the question of what constitutes “fighting words.”
Justice Murphy, author of the majority opinion, wrote that these are
the words that when said “without a disarming smile” would provoke a breach
of the peace. The Court feels that they are words that ordinary men
know would likely cause a fight. In calling the police officer a
“god-damned racketeer,” Chaplinsky intended to antagonize him. The
language that he chose to use fell within the realm of “fighting” words.
With the decision from Chaplinsky as the rule for “fighting words,”
the Court has dealt with other cases dealing with private citizens.
One such case is Gooding v. Wilson, 405 U.S. 518 (1972). This case
considered the validity of a Georgia statute that provided that “any person
who shall, without provocation, use to or of another, and in his presence…
opprobrious words or abusive language tending to cause a breach of the
peace… shall be guilty of a misdemeanor.” In this case the appellee,
Wilson, was convicted of violating this statute. He was protesting
the war in Vietnam, and upon the police’s attempt to arrest him, Wilson
began screaming, “White son of a bitch, I’ll kill you. You son of
a bitch, I’ll choke you to death. You son of a bitch, if you ever
put your hands on me again, I’ll cut you all to pieces.”
Wilson appealed the decision on the grounds that the statute
violated his First and Fourteenth Amendment rights because it is vague
and overbroad. The Court, agreeing with Wilson, ruled that the statute
was unconstitutionally vague and broad, and set aside Wilson’s conviction.
Justice Brennan, who authored the majority opinion, wrote that the statute
was invalid because the Georgia Courts did not narrow it to apply only
to “fighting” words. The use of the words opprobrious and abusive
gives the statute a larger range than just “fighting” words. Citing
Chaplinsky v. New Hampshire, the Court claimed that the guarantees of free
speech prohibit States to restrict speech that is not among “narrowly limited
classes of speech.” However, this does not mean that Wilson’s expression
is unconditionally protected. Under a more precise law, Wilson’s
speech most likely would have been constitutionally prohibited.
Lewis v. City of New Orleans, 415 U.S. 130 (1974) is another
case addressing the question of what private citizens can legally say to
police officers. This case revolves around a New Orleans ordinance
that makes it illegal “to curse or revile or to use obscene or opprobrious
language toward or with reference to” a police officer while doing his
duty. The appellant and her husband were pulled over while following
a police car that was taking their son to the police station. The
officer asked to see the husband’s driver’s license. According to
the officer’s testimony, the appellant then left the car and began yelling
about her son. She then said, “You god-damn m.f. police-I am going
to the Superintendent of Police about this.” At this point, she was
arrested and then later convicted of violating the ordinance. As
in Gooding v. Wilson, the Court reversed the decision of the Louisiana
Supreme Court. Justice Brennan, in the opinion, wrote that the ordinance
was too broad and vague. It was not limited to “fighting” words, a standard
established in Chaplinsky v. New Hampshire. The use of the term “opprobrious,”
as in Gooding, refers to words that do not tend to incite an immediate
breach of peace.
These cases have shown the Court’s opinion with regards to police
and civilian confrontations. However, Justice Powell, in his concurrence
for Lewis v. City of New Orleans, introduces an interesting point.
He believes that even “fighting” words should be protected when citizens
speak them to a police officer. This is because police officers are
trained to “exercise a higher degree of restraint.” Powell believes
that the police are expected to react in a different manner than a regular
citizen would when confronted with threats.
Along with police and citizen confrontations, the Supreme Court
has had to rule on cases in which one private citizen threatens another.
An example of this is R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992).
In this case, the appellant challenges the St. Paul Bias-Motivated Crime
Ordinance. The facts of this case are as follows: Petitioner,
accompanied by other teenagers, formed a cross from the wood of a chair
and proceeded to burn it on the lawn a neighboring Black family.
The act could have been punished under several laws, but the City of St.
Paul chose to charge the petitioner with the St. Paul Bias-Motivated Crime
Ordinance. The Ordinance criminalizes any form of expression designed
to arouse the anger of another on the basis of race and religion.
The Court ruled that the ordinance is unconstitutional. However,
it rejected appellant’s claim that the ordinance is too broad and vague.
In fact, the Court ruled that the ordinance is too narrow. As written,
the ordinance only protects against expression of “fighting” words directed
toward people of minority race and religion. It does nothing to prohibit
the same actions if directed towards homosexuals, those of different political
affiliation, etc. Here, the principles set forth in Chaplinsky are
still upheld. Concerning matters of personal threats between two
citizens, “fighting” words are not protected.
Threats Against the President
The Court has established that threats against members of our society
generally fall into a category of speech deemed “fighting words” and are
not within the protective boundaries of the First Amendment (Chaplinsky
v. New Hampshire). These words are thought to have no essential purpose
in the exposition of ideas and public dialogue. And though most of us have
no true legal means to fight back against someone that has threatened us,
a few select people do. U. S. C. Sec. 871 and 879 both state, as
federal law, that threats against a President or former President are constitutionally
unprotected, and further, will be a prosecuted offense upon which the defendant
may be incarcerated.
Section 871 contains the statute aimed a punishing threats against
the President and reads as follows:
18 U. S. C. Sec. 871. Threats against the President and successors
to the Presidency:
(a) Whoever knowingly and willfully deposits for conveyance in the mail
or for a delivery from any post office or by any letter carrier any letter,
paper, missive or document containing any threat to take the life of, to
kidnap, 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 President of the United States, or the Vice
President-elect, or knowingly and willfully otherwise makes any such threat
against the President, President-elect, Vice President or other officer
next in the order of succession, to the office of President, or Vice President-elect,
shall be fined under this title or imprisoned not more than five years,
or both.
.
Sec. 871 was given birth as the Act of Congress February 14, 1917,
ch. 64, 39 Stat. 919, and has been revised and amended several times until
this current form. The protective measures of this statute have been
well tested in their 80 years of existence. Questions of interpretation
have arisen throughout the application of this statute on several fronts,
namely: the character of whom it protects, the interpretation of “knowingly
and willfully,” intent, and the determination of a “true threat.”
In determination of these aspects, the Court has created guidelines
through a long legal history of questioning what should and should not
be punishable under such a statute. The first issue in dealing with
this law is to determine whether it is actually a constitutional, reasonable
restriction of speech in advancement of a sincere governmental interest.
To answer this, the courts have found that any threats against the life
and liberty of the President are akin to treason against the Union as a
whole. United States v. Stickrath, 242 F. 151 (1917). It is thought,
however, that the President in his private capacity is no more than other
men of this country and therefore a threat to him in such a private way
will not be punishable under this law. But, a distinction must be
shown that the threat was to the President as a private citizen, and not
because of his office or actions while in office as the President of the
United States, United States v. Metzdorf, 252 F. 933 (1918). In this
case, the Court said, “Amongst the powers so vested in the United States
is that to provide itself with officers. Therefrom is implied the
power in the Untied States to protect its officers as such, a power necessarily
inherent in all governments, to conduct their affairs, to protect their
agents, to preserve the government *** In brief, the United States has
inherent power to prohibit and punish injury to its officers, when the
injury is incited and inflicted because they are officers; and this, because
the injury is to the United States.” United States v. Metzdorf 252 F. 933,
936. Because Presidents have a special position, giving them access
to information effecting national security, they become targets for the
acts that are the exact aim of this statute, and therefore, Congress has
a substantial interest in creating legislation to prevent these acts.
United States v. Gordon 974 F.2d 1110 (1992). Furthermore,
the nation has an overwhelming interest in allowing the President to perform
his duties without interference of threats. Watts v. United States,
394 U. S. 705 (1969). If the President were to be concerned with
his life because no protection was afforded, he could in no way perform
his duties without constant fear of the deprivation of his own life.
The courts have found it essential that the President be afforded the opportunity
to act as Chief Executive Officer and Commander-in-Chief of our nation,
unencumbered by the threat of peril by doing so.
The interpretation of the words “knowingly and willfully,” within
the statute, are closely related to the factor of intent, yet are significant
enough to warrant a separate discussion. The most fundamental question
when analyzing the statute is to ask what these words mean and address
the aim of their application. The most thorough explanation is found
in the jury instructions of the United States District Court for the Western
District of Louisiana in United States v. Rogers 488 F.2d 512 (1974):
“A threat is knowingly made if the maker of it comprehends the meaning
of the words uttered by him, and a threat is willfully made if in addition
to comprehending this words, the maker voluntarily and intelligently utters
the words as a declaration of an apparent determination to carry out the
threat *** under such circumstances that a reasonable person would foresee
that the statement would be interpreted by persons hearing or reading it
as a serious expression of an intention to inflict bodily harm upon or
to take the life of the President of the United States *** (and) that the
statement was not the result of mistake, duress or coercion. [*514 at footnote]
This wording gives an outline of what nearly every other court has viewed
as “knowingly and willfully,” and provides a clear guideline for the understanding
of the language. The import of understanding what “knowingly and
willfully” means is that they are central to the finding of intent.
If the above test is not met, the demonstration of intent will follow suit.
Intent may be the largest area of discourse between defendants
and prosecutors in court battles. What was the intention of the statement?
Was it a “true threat”? Was it made in jest? Could it foreseeably be carried
out? The rule that was determined in most courts found that it is
the making of the threat, not the intent to carry it out, that violates
the statute. Pierce v. United States 365 F.2d 292, United States v. Rogers
supra, Watts supra. A prosecution under this section would not only
require proof that the statement could reasonably be perceived as a threat,
but would also require some evidence that the maker intended the statement
to be a threat. Gordon supra. In this, the statement must be proven
to be a “true threat,” not a statement made as a political expression or
in jest such as in Watts. However, a defendant will not be
allowed to shield himself under a claim that the statement was made as
a joke simply to avoid prosecution if he did so knowingly and willfully,
and a reasonable person could foresee that the threat is a “true” one.
Pierce supra. The determination of a “true threat” must consist of
a strict analysis. A person claiming “if they make me carry a rifle,
the first man I want in my sights is LBJ” (Watts) is not considered a “true
threat” because the person was denouncing the fact that the government
would ever get a rifle in his hand. The statement was not only a
mere political hyperbole, but it was made, and taken, as a joke as everyone
laughed afterwards. On the other hand, if the threat is not made
as a joke, a reasonable person could foresee that the threat would be carried
out, and it is specific in any way such as to time, place, manner, etc.,
it would be found the type of speech that this statute is directly aimed
at.
Various other cases have come about with differing evidence upon
which the courts have had to answer as to their admissibility. Hunter
v. Bryant 502 U. S. 224 (1991) was a case where the plaintiff wrote a letter
depicting a “Mr. Image” assassinating President Reagan on his visit to
Germany. Hunter was tried under 18 U. S. C. Sec. 871 but was acquitted
because the Secret Service officer (Bryant) who handled the case did not
read the article in the most reasonable fashion. Statements made by Hunter
concerning actions of a Mr. Image could not be found punishable even if
it could be shown that they were intentions of this alter ego. The
threat was not shown to be made by Hunter, it did not constitute a “true
threat,” and a reasonable person would not have foreseen Hunter assassinating
President Reagan upon reading the letter.
Moreover, in other cases, certain evidence is admissible in court
to show the motive of the defendant. Threatening statements toward
the President on several different occasions are admissible to demonstrate
that the defendant had a prior motive and intent and that the statements
were not made in jest but constituted a “true threat.” Rothering
v. United States 384 F.2d 385. Furthermore, evidence of religious
affiliation is admissible to show motive such as where defendant was in
the Reverend Moon cult, whose belief fell in direct opposition of the aims
of the statute. United States v. Hoffman 806 F.2d 703.
It is important to remember that this statute reaches beyond
the President in its application, although he is the main beneficiary of
its protection. The Vice President, any other officer next in succession
of the Presidency, the President-elect, Vice President-elect, or any other
officer next in succession of them are all protected under federal law.
Also, this protection, at least for the President, does not cease upon
the end of his term, but carries on throughout his life in 18 U. S. C.
Sec. 879.
18 U. S. C. Sec. 879 further extends the protection of federal
law not only to the President, but also to family members and candidates
for office:
18 U. S. C. Sec. 879. Threats against former Presidents and certain
other persons protected by the Secret Service:
(a) Whoever knowingly and willfully threatens to kill, kidnap, or inflict
bodily harm upon-
(1) a former President or a member of the immediate family of a former
President;
(2) a member of the immediate family of the President, the President-elect,
the Vice President, or the Vice President-elect; or
(3) a major candidate for the office of President or Vice President,
or the spouse of such candidate; who is protected by the Secret Service
as provided by law, shall be fined under this title or imprisoned not more
than three years, or both.
Because of the unique character of the office, the President must be
protected throughout his life. However, he is not the only person
benefiting from this statute’s aims. Immediate family, in terms of
(a) (1), means the wife of a former President during his lifetime, the
widow of a former President until her death or remarriage, and minor children
of a former President until they reach sixteen years of age. Immediate
family, in terms of (a) (2), is defined as someone that is related by blood,
marriage or adoption or the official stands in loco parentis to.
The standards in violation of this law are identical to those in 871.
It has been deemed by Congress, and upheld by the courts, that
those in the highest political offices in our country, and their families,
need the protection of federal law. This fact has not been highly
disputed, as only a few cases have made it past first appeal into the Supreme
Court. Indeed, a threat against the figureheads of our country is
a threat to the stability of our country and stands outside the protection
that nearly all speech is afforded under the First Amendment. It
is true that threats are a type of speech, but here, as we can plainly
see, they do not serve any essential part of dialogue and go further to
attempt to influence the way in which our country is run and by whom it
is run. Without these laws, our high officials would be susceptible to
numerous attacks by any ranting person who is either opposed to them, or
psychotically seeks to become part of the public eye. As citizens
of this country, we must stand behind these decisions to enforce 871 and
879 not only so that those the law protects will sleep easy at night, but
also so that we will sleep easy knowing that when we wake up, our country
will still be in the hands of those people we entrusted it to last night.
Protests, Boycotts, and “Veiled Threats”
The Supreme Court has established that personal threats are proscribable
speech and are not protected by the First Amendment, Chaplinsky v. State
of New Hampshire. There are some instances, however, where personal threats
invade activities that traditionally have been protected by the First Amendment.
In these cases, the State clearly faces a dilemma: How can we preserve
protected speech while still maintaining public order by punishing threats?
The Supreme Court has addressed this question several times in cases regarding
picketing, boycotting, and employee strikes.
First, the Supreme Court addressed the extent to which speech
may be punished when associated with threats of violence and social reprisal,
in National Association for the Advancement of Colored People v. Claiborne
Hardware Co. 458 U.S. 886 (1982), 1982 U.S. LEXIS 49. In 1966, the National
Association for the Advancement of Colored People (NAACP) launched a boycott
against white merchants in Claiborne County, Miss. The boycott was intended
to "secure compliance by both civic and business leaders with a lengthy
list of demands for equality and racial justice". NAACP http://web.lexis-nexis.com
(11/08/98)
In 1969, the merchants filed suit for injunctive relief and damages
against individuals who had participated in the boycott. The merchants
claimed that the boycott was illegal because participants "had agreed to
use force, violence, and 'threats' to effectuate the boycott". NAACP
http://web.lexis-nexis.com (11/08/98.). The chancellor before whom the
trial was heard granted both damages and an injunction, which prevented
the protesters from "stationing 'store watchers' at the respondents' business
premises; from 'persuading' any person to withhold his patronage from respondents;
from 'using demeaning and obscene language to or about any person' because
that person continued to patronize the respondents; from 'picketing and
patrolling' the premises of any of the respondents; and from using violence
against any person or inflicting damage to any real or personal property."
NAACP, http://web.lexis-nexis.com (11/08/98).
The Mississippi Supreme Court, 393 So.2d 1298, upheld the ruling
of the chancellor under the theory that the boycott participants "had agreed
to use force, violence, and 'threats' to effectuate the boycott." The Supreme
Court granted the petition for certiorari to hear the case under First
Amendment standards. The Supreme Court first held that all participants
could not be held liable because "the right to associate does not lose
all constitutional protection merely because some members of the group
may have participated in conduct or advocated doctrine that itself is not
protected." In other words, the mere association with individuals
who have made threats does not constitute a forfeiture of protection for
non-violent activities.
The Court further held that although the participants threatened
social ostracism for noncompliance with the boycott, "speech does not lose
its protected character, however, simply because it may embarrass others
or coerce them into action." Thus, the Court upheld the "nonviolent elements"
of the participant's activities as protected under the First Amendment.
The Court, however, did address the issue that the First Amendment
does not protect violence or threats of violence. The Court maintains a
"precision of regulation" standard for reviewing violent conduct in association
with constitutionally protected speech. Under this standard, the
State is required to define a compelling government interest for its regulation.
If this interest is accepted as compelling, the Court will employ the "precision"
standard to ensure that the regulation is not so broad that it unnecessarily
infringes on protected speech. In NAACP v. Button 371 U.S. 415, the
Court stated that "if there is an internal tension between proscription
and protection in the statute, we cannot assume that, in its subsequent
enforcement, ambiguities will be resolved in favor of adequate protection
of First Amendment rights. Broad prophylactic rules in the area of free
expression are suspect. Precision of regulation must be the touchstone
in an area so closely touching our most precious freedoms." http://caselaw.findlaw.com
(11/11/98). In NAACP v. Claiborne, the Court said that the State is allowed
to punish violent conduct associated with speech protected by the First
Amendment. The Court, however, rejected the notion that the State may demand
compensation for the associated activities that are protected by the First
Amendment. The Court further stated that individuals could not be punished
merely for their association with an individual or group that threatens
someone. The Court said that in order to "punish association with such
a group, there must be 'clear proof that a defendant specifically intend[s]
to accomplish [the aims of the organization] by resort to violence.'" In
Noto v. United States, 429 U.S. 843 (1976), 1976 U.S. LEXIS 2692, the Court
stated that "this intent must be judged 'according to the strictest law'
for 'otherwise there is a danger that one in sympathy with the legitimate
aims of such an organization but not specifically intending to accomplish
them by resort to violence, might be punished for his adherence to the
lawful and constitutionally protected purposes, because of other and unprotected
purposes which he does not necessarily share'." http://web.lexis-nexis.com
(11/09/98).
Similarly, the Court found that the boycott did not succeed "solely
through fear and intimidation." Because only a few isolated cases
of violence occurred, the Court maintained that the injunction could not
stand. The Court also said that speeches that suggest threats of violence
or social ostracism are within the limits of protected speech. The Court
reviewed such allegations under the standard set forth in Brandenburg v.
Ohio 395 U.S. 444 (1969), 1969 U.S. LEXIS 1367. "This Court has made clear,
however, that the mere advocacy of the use of force or violence does not
remove speech from the protection of the First Amendment." http://web.lexis-nexis.com
(11/09/98). Because there was inconclusive evidence to support the fact
that such speeches resulted in immediate violent acts, the Court held that
the speeches were protected under the First Amendment. In this case, the
Court concluded that the trial court's ruling was unconstitutional because
it attempted to punish activity that is protected by the First Amendment.
On the other hand, the Court came to a very different conclusion
with regards to employee strikes and picketing in Milk Wagon Drivers Union
of Chicago, Local 753 v. Meadowmoor 312 U.S. 715 (1941), 1941 U.S. LEXIS
1217.
In this case, the milk vendors (Meadowmoor), who employed the
drivers, stripped the drivers of the working standards that the union had
previously fought for. The union then stepped in to "encourage" the
vendors to restore the agreed-upon working standards. Peaceful picketing
was part of the union's methods--but so was "violence on a considerable
scale," according to the Court. "Witnesses testified to more than
fifty intances of window-smashing; explosive bombs caused substantial injury
to the plants of Meadowmoor and another dairy using the vendor system and
to five stores; three trucks of vendors were wrecked, seriously injuring
one driver, and another was driven into a river; a store was set on fire
and in large measure ruined; two trucks of vendors were burned; a storekeeper
and a truck driver were severely beaten; workers at a dairy which, like
Meadowmoor, used the vendor system were held with guns and severely beaten
about the head while being told 'to join the union'; carloads of men followed
vendors' trucks, threatened the drivers, and in one instance shot at the
truck and driver." http://web.lexis-nexis.com (11/12/98).
In response, the milk vendors sought injunctive relief from the
protestors. The trial court granted a partial injunction in which
the drivers were permitted to maintain peaceful picketing but were forbidden
from committing violent acts. The Supreme Court of Illinois went
further, granting a permanent injunction against the protesters that prohibited
peaceful picketing as well.
Clearly, this case presented a much different set of circumstances
than did NAACP v. Claiborne. Peaceful picketing is one of the core
foundations of free speech. Could the state authorize its courts
to enjoin such acts simply because they might coincide with violence?
In this case, the Court said that the violence and threats of
violence were pervasive tactics used by the union in protest--even their
"peaceful picketing" had an underlying threatening tone as a result of
these acts. The Court ruled that "peaceful picketing is the workingman's
means of communication...but utterance in a context of violence can lose
its significance as an appeal to reason and become part of an instrument
of force." http://web.lexis-nexis.com (11/12/98). When violence and
threats of violence are a vital part of the protest (as opposed to simply
incidental), the Court ruled that all related activities are equally subject
to regulation.
"No one will doubt that Illinois can protect its storekeepers
from being coerced by fear of window-smashings or burnings or bombings,"
the Court said. "And acts which in isolation are peaceful may be
part of a coercive thrust when entangled with acts of violence. The
picketing in this case was set in a background of violence. In such
a setting it could justifiably be concluded that the momentum of fear generated
by past violence would survive even though future picketing might be wholly
peaceful." http://web.lexis-nexis.com (11/12/98). In other words,
through their violence, the protesters have, in effect, made picketing
and violence inseparable. They therefore forfeit their First Amendment
rights to picket.
The Court wanted to ensure that States do not accept this ruling
as an invitation to outlaw picketing where violence and threats of violence
are incidental. "It distorts the meaning of things to generalize
the terms of an injunction derived from and directed towards violent misconduct
as though it were an abstract prohibition of all picketing wholly unrelated
to the violence involved," http://web.lexis-nexis.com (11/12/98) the Court
said.
Inevitably, then, the Court anticipated more litigation on this
issue. They got it in Madsen v. Women's Health Center, Inc. 512 U.S.
1277 (1994), 1994 U.S. LEXIS 5244. This case involved anti-abortion
protesters who picketed a Florida abortion clinic. A state court
permanently prohibited the protesters from "blocking or interfering with
public access to the clinic, and from physically abusing persons entering
or leaving it." http://web.lexis-nexis.com (11/08/98) That court
later broadened the injunction, placing greater restriction on the speech
activities of the protesters. The injunction "excludes demonstrators
from a 36-foot buffer zone around the clinic entrances and driveway and
the private property to the north and west of the clinic; restricts excessive
noisemaking within the earshot of, and the use of "images observable" by,
patients inside the clinic; prohibits protesters within a 300-foot zone
around the clinic from approaching patients and potential patients who
do not consent to talk; and creates a 300-foot buffer zone around the residences
of clinic staff." http://web.lexis-nexis.com (11/08/98).
"An injunction, by its very nature, does not address the general
public, but applies only to particular parties, regulating their activities,
and perhaps their speech, because of their past actions in the context
of a specific dispute." http://web.lexis-nexis.com (11/08/98). The
Court does not view injunctions as content-based as the court said "that
the injunction covers people who all share the same viewpoint suggests
only that those in the group whose conduct violated the court's order happen
to share the same viewpoint." http://web.lexis-nexis.com (11/08/98).
Therefore, the Court reviews injunctions as they "burden no more speech
than necessary to serve a significant government interest." http://web.lexis-nexis.com
(11/08/98). Because injunctions have the potential of maintaining
greater restrictions on speech, the Court applies more stringent standards
for injunctions than simple time, place, and manner restrictions follow.
In Madsen v. Women's Health Center, the Court found that
the State maintained significant government interests in protecting patients'
and potential patients' rights and safety as well as maintaining public
order. The Court, however, disagreed that the means of regulation were
narrowly tailored to maintain these government interests. The Court upheld
the section of the injunction which prohibited individuals from "physically
abusing, grabbing, intimidating, harassing, touching, pushing, shoving,
crowding or assaulting persons entering or leaving, working at or using
services at the Clinic or trying to gain access to, or leave, any of the
homes of owners, staff or patients of the Clinic." The Court further upheld
the section that prohibits individuals from "harassing, intimidating or
physically abusing, assaulting or threatening any present or former doctor,
health care professional, or other staff member, employee or volunteer
who assists in providing services at the Clinic." http://web.lexis-nexis.com
(11/08/98)
On the other hand, the Court found that many of the other prohibitions
on speech-related activities within the injunction were not consistent
with the "precision of regulation standard" because the restrictions burden
more speech than necessary to achieve the government's end. For instance,
the Court regarded the "images observable" provision as overly broad. The
Court states that the provision may prohibit "the display of signs that
could be interpreted as threats or veiled threats" as they are "proscribable
under the First Amendment." The Court denies the State the ability to restrict
the display of all images, however, because the Clinic may pull the curtains
to prevent patients from being disturbed by the images displayed (see Cohen
v. California, 403 U.S. 15 (1971)).
Similarly, the Court held that without clear evidence that the
protestors speech was proscribable, involving "fighting words" or threats,
and inseparable from actual violence, the provision that prohibits protestors
from approaching individuals seeking services at the Clinic within 300
feet of the Clinic was unconstitutional. The Court contends that
"the 'consent' requirement alone invalidates this provision; it burdens
more speech than is necessary to prevent intimidation and to ensure access
to the Clinic."
Consequently, these cases (NAACP v. Claiborne, Milk Wagon Drivers
v. Meadowmoor Dairies, Inc., and Madsen v. Women's Health Center) set standards
for the review of the protection afforded by the First Amendment with regards
to speech that is intermingled with threats of violence. The Court established
a "precision of regulation" standard, which ensures that regulations on
speech do not "burden more speech than necessary" to further the governmental
interest involved. The Court finds that the elimination of threats of violence
from otherwise peaceful picketing, boycotting, and petitioning activities
is a significant government interest. The Court attempts to maintain a
clear distinction between cases where the proscribable speech is inseparable
from the otherwise protected speech activities, Milk Wagon Drivers Union
of Chicago v. Meadowmoor, and cases where the proscribable speech
may be separated from the protected speech elements , NAACP v. Claiborne
and Madsen v. Women's Health Center.
may be punished when associated with threats of violence and social
reprisal.
Conclusion Clearly, the courts have had a difficult time dealing
with the issue of personal threats. While trial courts might rule
that one standard should apply, an appellant court might rule in a completely
different manner. For the purposes of law and precedent, the only
important rulings are those of the U.S. Supreme Court.
The above analysis should now allow us to answer the questions
raised in the introduction. In the case of the man threatening to
tear someone apart “limb from limb,” the courts would probably deem that
speech “fighting words.” If the case went to court, the man would
not be able to claim protection under the First Amendment.
In the case of the man threatening the life of the President,
the courts would probably hold that a reasonable person would not “foresee
that the statement would be interpreted by persons hearing or reading it
as a serious expression of an intention to inflict bodily harm upon or
to take the life of the President of the United States.” Therefore,
the speech would probably be protected under the First Amendment.
In the final, most complex hypothetical situation of protesting
the abortion clinic, the courts could probably grant a limited injunction
against the group. However, the peaceful protesting would still be
allowed if the threats could be separated from it. If the group continued
to threaten women as they walked by, the court would be permitted to grant
a more serious injunction against the protesters that criminalized leafleting
as well.
As with most law, laws regarding personal threats are often ambiguous
and subject to multiple interpretations. Consequently, the courts
should anticipate more litigation on this issue. We, in turn, should
expect the law to evolve over time. The First Amendment is one of
the most powerful mechanisms for protecting our freedom, but the courts
have ruled, when it comes to personal threats, that all of us must make
sacrifices to ensure that we continue to have a peaceful, orderly society.
Copyright 1998
Joe Ward, Aaron McFarland, Jennifer Price, and Aaron Jacobs.
All Rights Reserved.
Unauthorized reproductions are prohibited without authors's express
permission
For permission contact authors.