speaker intent disclaimers & 1st Amendment

[David Cruz]

On Thu, 16 Mar 2000, Leslie Goldstein wrote:

> If one person says to another something that the listener infers is a
> veiled threat to commit murder, and asks, "Are you threatening me?" and
> the first answers, "not at all, what I meant is xyz (innocuous
> message)," then it would seem to me that the speaker is not chargeable
> with the (punishable, yes?) crime of threatening murder.

In this broadly phrased form, can this possibly be correct?  What if not
only the listener L but every reasonable person would interpret the
speaker S's utterance as a threat to murder, and no reasonable person
would regard xyz as a plausible/reasonable/persuasive interpretation of
S's utterance?  Still unpunishable (assuming murder threats are
constitutionally punishable) simply because S after the threat disclaimed
any threatening intent?  If Leslie Goldstein has articulated the correct
rule with regard to threats, why should it not apply to any crime where
one interpretation of the speaker's utterance is used as evidence of an
element of the crime and the speaker subsequently announces that she or he
intended to express something different?  This seems wrong to me, for I
think experience shows that people have lied about their past intentions,
as to both utterances and other acts.

-David B. Cruz, USC Law (Cal.)