bryanw at TJSL.EDU
Thu Jun 7 13:44:38 PDT 2001
My apologies for the late replies to this and some other postings, but I am
only now emerging from the cocoon of final exam grading.
I agree with Eugene that the "true threats" area raises potentially very
troubling boundary problems. One suggestion that may help classify proper
from improper restrictions: I think there is an important distinction to be
drawn between statements that on their face indicate the speaker's own plans
or intent to engage in violent behavior, and statements that refer to
possible actions of others over whom the speaker has no direct or apparent
control. The latter would seem better analyzed in terms of classic
"incitement" principles, and the highly protective standard applicable there
(properly so, in my view) would make it more difficult to punish such speech
on "threat" grounds. I am much more comfortable with punishing the former
type of statements, because the speaker has such easy control over how
he/she phrases such statements. If you don't want to be punished, but want
to exercise vigorous speech, then advocate, don't threaten.
Some of my personal reactions to Eugene's hypotheticals (which are
fiendishly clever as always, and very effective in flushing out the
difficult issues) are set forth below.
Bryan Wildenthal, Thomas Jefferson School
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Friday, May 18, 2001 11:47 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: true--after Columbine--threats
I very much sympathize with Bryan's concerns, and I agree that some
sort of threat exception is in fact necessary.
The trouble, though, is that a wide variety of speech can be seen as
an "implied threat," especially when said against a backdrop of violence.
When someone praises those who commit violence, or explains how their
actions are justifiable, or suggests that such actions are necessary, or
writes fiction in which these actions are repeated, those who are the likely
victims of such violent acts -- whether the acts are killings, beatings, or
what have you -- are likely to feel understandably intimidated. But if this
alone can justify criminal punishment of such speech, then we'll have a
really remarkably broad range of speech restrictions.
Just a few examples:
1. Someone says, at a town meeting discussing black attacks on
Korean storeowners during the L.A. riots, "I really understand why those who
were participating in the rebellion were doing. I'm sure it'll happen
again, and maybe it should happen, if the Koreans don't change their ways."
Clearly not subject to proper restriction as a "threat." The speaker is not
even implying that he himself will take any action (certainly no clear
threat to do so), but merely commenting upon (perhaps arguably encouraging)
illegal actions of others.
2. A student says, after a student shoots a teacher, "Wow, I really
empathize with this guy. I mean, haven't we all sometimes had the desire to
attack one of our teachers? And, let's face it, some teachers deserve it --
do you remember what Mr. X did to so-and-so a few weeks ago?" (I think it
might be proper to discipline the student for this, cf. Tinker; my question
is whether it is proper for the government-as-sovereign to punish him beyond
such in-school discipline.)
Closer, but not punishable as a threat in my view, nor as incitement. It
seems at worst indirect endorsement of a past action, perhaps vague advocacy
of possible future action.
3. Against a backdrop of a bitter strike, which has involved some
violence against strikebreakers and against management, someone publishes a
letter in a local newspaper calling strikebreakers -- whose identities are
well-known in the small, close-knit community -- "scabs," "toads," and
"vampires" (cf. the Jack London screed), and saying that "one day there'll
be a stake driven through their hearts."
Troubling as an incitement case, but again, not a "threat" as I would define
the concept. Too vague and undirected.
4. Someone give a speech saying "All [abortion providers / people
who attack abortion providers / ecological criminals / etc.] are murderers,
and they deserve to die. One day, some courageous people will show them the
error of their ways."
More troubling as an incitement than as a threat. Again, seems vague, and
imminence seems lacking.
I think that in each of these cases, certain people would quite
rationally feel threatened by the speech. In each of these cases, credible
cases could be made that the speech is indeed actionable under various
threat laws -- consider the litigation in the Ninth Circuit's Planned
Parenthood v. American Coalition of Life Acitivists case. In each of these
cases, I very much sympathize with those who feel threatened. But it seems
to me that such speech must be protected.
As the above comments indicate, I sympathize with Eugene's concern
about protecting statements like his hypos. But I think courts are capable
of drawing lines between such vague advocacy and reasonably understandable
direct and specific threats against targeted victims.
Bryan Wildenthal, Thomas Jefferson School of Law
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