Cross burnings, true threats, and terrorist threats

Gey, Steve SGey at LAW.FSU.EDU
Sat Dec 21 02:00:53 PST 2002

Thanks to Jack.  I agree wholeheartedly that this is a very enlightening
discussion about basic free speech principles.  I just hope the Justices
have a similar discussion before they issue any opinions that seriously
damage those basic principles in a well-intentioned effort to send a few
pathetic hatemongers to jail.  In answer to Jack's query, I think there is
such a thing as terrorist threats, but to prosecute those threats I think
the First Amendment requires adherence to a properly limited concept of
"true threats."  In my conception of things, this requires prosecutors to
prove (1) that the speaker had the specific intent to say something that
would cause the target of the threat to change his or behavior out of fear
generated by the speech in question, (2) that the context was such that a
reasonable listener hearing the threat would respond immediately to alter
his or her behavior in the manner intended by the speaker, and (3) in the
case of threats communicated publicly, that the speaker explicitly detailed
the nature of proximate action to be undertaken against the target.  I would
weaken the third element somewhat in cases where the threat is communicated
privately, on the ground that there is something inherently more threatening
about even innocuous and unspecific speech communicated in a private manner
if that speech is delivered in a context where other factors contribute to
an atmosphere of reasonable fear.  (Think Robert Mitchum in the original
Cape Fear.)

Applying this standard, I would certainly agree that threats directed at
particular individuals are subject to prosecution, and would also agree that
specific anthrax or similar threats communicated (either publicly or
privately) to all the occupants of an entire office building are subject to
prosecution.  I would even agree that threats targeting an entire city could
sometimes be subject to prosecution.  An example would be if some group
along the lines of Japan's Aum Shinriko announced that it planned to release
serin gas in the New York subway system next week.  I would submit, however,
that these examples are far, far removed from the circumstances surrounding
an individual like Virginia defendant Black burning a cross in a field among
a group of fellow racists.  I will stipulate that Black probably intended
his symbolic act to generate fear and trepidation among all
African-Americans, and that the speech had its intended effect among many
members of this group.  But in my view the context and specific information
communicated by the speaker are far too diffuse to characterize Black's
speech as a "true threat" of the terrorist or any other variety.  Black's
speech is therefore protected under the First Amendment, and any statute
that would permit the courts to sanction someone engaging in similar speech
should be declared unconstitutionally overbroad.  It does not matter, by the
way, if the sanctions take the form of criminal penalties or civil
liability.  A tortious infliction of emotional distress approach should have
no greater chance of success than the business tort approach in Claiborne
Hardware.  The key is whether the speech is protected; if it is, then all
forms of legal sanction are impermissible.

At the risk of repeating previous posts, I really do not see why Brandenburg
and Claiborne Hardware don't definitively determine this case in Black's
favor.  (It is possible to argue that Brandenburg and Claiborne Hardware
should be overruled, but I don't hear anyone making that case.)  In
Brandenburg the speaker merely articulated verbally what the Virginia
burning cross represents.  In Claiborne Hardware the Evers speech seems
precisely the kind of speech that Jack argues should be unprotected:  speech
phrased in the form of a threat, probably intended to intimidate the targets
of the speech, spoken in a context in which the targets are likely to hear
about it, and enforced in the weeks after the speech through the very forms
of violence promised by the speaker.  And yet the speech was protected by a
unanimous Court.  The targets' fear of bodily harm communicated by Evers'
speech in the highly charged atmosphere of a nasty and violent conflict in a
small Mississippi town seems to me at least as great as the fear generated
by Black's speech in Virginia.

Maybe these cases eventually all rest on our individual instincts about the
government's (and juries') attitude toward radical dissent.  My own instinct
is that if you give them the authority, governments and juries will always
misuse that authority to suppress politically and socially radical or
eccentric speech at both ends of the political continuum.  Justice Thomas'
reaction to cross-burning is no different in kind than Justice Sanford's
reaction to socialist speech in Gitlow.  Both Justices see no reason to
extend First Amendment protection to radicals who have nothing useful to
contribute to "legitimate" political debate.  But government overreaching is
inevitable, and sometimes absurdly so.  Since examples are the raw material
of our instincts in these discussions, consider one more instance from the
now-distant past.  In 1968 Abbie Hoffman made news by threatening to put LSD
in the Chicago water supply during the Democratic convention.  Mayor Daley
responded by stationing police boats around the city's water filtration
plants and Timothy Leary was questioned about this "plan" during the Chicago
Seven trial.  The "plan" was, of course, a joke, as should have been obvious
to anyone who knew anything about either Hoffman or chemistry.  Yet some of
the good citizens of Chicago probably were frightened by the prospect of a
free ride on the magic bus, and the mayor spent some serious government
resources to allay their fears.  The reaction probably did not surprise
Hoffman, who had every intention of rattling a few Establishment cages by
simultaneously mocking and intimidating his ideological adversaries.
Assuming a narrowly drawn "terrorist threats" statute, should Abbie Hoffman
have been sent to prison?

Steve Gey
Florida State University
College of Law

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