Legal Analysis
The First Amendment protection of speech does not distinguish between
lawful and unlawful expressions. Since determining when lawful speech
over steps the boundaries and becomes unlawful is so difficult, the
definition of a “true threat” is open to interpretation. The definition
is, therefore, continuously redefined, resulting in unbalanced judicial
hearings. Time and again court rulings have sought to uphold First
Amendment rights, but only upon the determination that the communciated
language does not qualify as unlawful. The judicial system has indicated
that despite our right to speech that “true threats* are not protected by
the First Amendment. Over time, many cases have highlighted the evidence
needed to determine the validity of a threat, and although the criteria
varies from case to case, deliberation tends to involve a similar set of
guidelines. What follows are the predominant notions of what the courts
have come to consider as constituting a legal threat.
Among the stipulations of what a threat consists of, there is no apparent
dispute to the notion that the medium by which a threat is communicated
does in no way invalidate its legal implications. A threat is not
restricted to being a physical nor spoken exchange. All forms of
communication including telecommunications, mail, e-mail, and even the
Internet have been found to be reasonable methods by which a threat can be
communicated. The last two mediums are more recently accepted forms. In
US vs. Machado, the court ruled that making threats by e-mail is in fact
unprotected by the First Amendment.1 And the Planned Parenthood vs. ACLA is the first ruling in which usage of the Internet to
communicate a threat was permisable as evidence. (For an example of evidence submitted in the trial, click here. Please note that the images are very graphic.)
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This was the first screen of the Nuremberg Files
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Numerous rulings have considered context to be one of the crucial elements
in determining the legality of a threat. In determining whether the
context in which a threat was made makes the threat unprotected speech,
investigations tend to examine the relationship between the involved
parties, the circumstances leading up to the communication, the behavior
of the person making the threat, and the setting of the actual
communication. However, there are exceptions where the speech is still
considered unprotected in situations where the context is weak or it
conflicts.
In US vs. Machado, the defendant maintained that the threat he made was
merely joke, yet despite the absence of any relationship to the threatened
individuals, the jury pronounced his speech as unlawful due to the
racially motivated context of the threat.2 In our present case, the
context of the Nuremburg site, along with that of the “wanted” posters and
“deadly dozen” list was heavily considered in the determination of threat
towards the targeted individuals.
Intent is among the more significant factors in determining a true
threat. Courts have shown that there must be a willful intent to carry
out the alleged threat. this tends to be a cautionary measure intended to
protect individuals who mistakenly make a threat in a moment of
desperation and frustration. In such instances, intent and context
directly contradict. While in the context of the situation a threat could
easily be interpreted as unlawful, it is often found that there is no
intent to carry out the threat. This is why when determining context, the
behavior of the individuals and their relationship to one another is an
important factor. The defendants of the Planned Parenthood suit asserted
that their posters and web site where in no way intended to illicit
unlawful actions, but instead to provide factual data.3 The jury concluded otherwise.
Considering the reaction of the recipient to the threat is among the more
controversial factors used to determine the legality of a threat. It is
here in which court rulings have often given weak interpretations that
have provoked public disagreement and that have lead to calls for
justice.4 Among the more ill-defined terms is that of a “reasonable
person.” When considering the speech as unlawful, the reaction elicited
by a “reasonable person” as a consequence of a threat is heavily weighted
in the court’s decision. While the rationalization may be to consider the
fear and intimidation that results from a threat as important elements, it
is not the most concrete means by which to assure this. The difficulty is
that emotions are an unpredictable and abstract, yet fundamental
constituent of human life that are essentially immeasurable. Jury
deliberation is therfore unpredictable due to these loose definitions.
The predominant definition states that if a threat as interpreted by a
“reasonable person,” causes fear for the safety and/or the life of an
individual or their family, it is unprotected by the First Amendment.5 In
deliberation over the evidence against the ACLA, the judge instructed the
jury to use their notion of a “reasonable person” to determine the
legality of the threat.
Cases in which presidentially directed threats are involved have
established a widely accepted tendency to declare speech as unlawful in
lieu of the absence of the intended target during communication of the
threat.6 If a communicated in the presence of a 3rd party, the threat is
just as legal. In these circumstances, the 3rd party plays the role of
the “reasonable person,” whose reaction is used to determine whether or
not the communicated speech is legally unprotected. In US vs. Baker, an
attempt was made to expand this measure to include threats which do not
specifically target an individual. Unlike United States v. Cox, where the
“Sixth Circuit has also held that ‘a specific
individual as a target of the threat need not be identified.’ their
attempt has been unsuccesful thus far.7 The grounds for prosecution
against Baker were based on statute 18 U.S.C. Sec. 875(c), but jury
interpretation found for the defendant, based on inconclusive evidence.8
One of the less significant factors, but nonetheless included, regards the
unconditionality of a threat. A threat must exhibit the intent to be
carried out, unconditionally.9 While this overlaps with the factor of
intent, it differs in the sense that certain speech is made on a
conditional basis when the communicator seeks to gain something from the
recipient, and only in the extreme circumstance that the recipient does
not deliver, will the threat be carried out. Legally this seems to be a
weak argument. Determining if a disputed threat is unconditional is
difficult. Unconditionality is a circular argument that insignificantly
contributes to deliberations.
This factor is similarly a weak contributor in the determination of a true
threat. It deals more with the exact threat, and seeks to assure that a
threat is not ambiguous and not obscure. In other words that the
communicated speech is in no way debatable as a threat and that this is
obvious to a reasonable person.10
Open to jury interpretation
Perhaps the most significant factor in the determination of a legal threat
comes from
the jury’s interpretation and understanding. Ultimately, the jury will
have the last say, not only in deciding if speech is unlawful, but also in
establishing the guidelines by which to make that decision. The jury’s
reaction to the case and the circumstances will guide its decision. In the
Planned Parenthood vs. ACLA trial, the power of the jury to make a
decision based on their own opinion is apparent.11 The final ruling
favoring the plaintiffs, came through the jury’s reaction to the “threat”
and their expectations of a “reasonable person”.
The memorandum created by ACLU to direct the courts ruling in Planned
Parenthood vs. ACLA is written in an effort to protect First Amendment
rights. The brief points out that the Supreme Court “has not yet offered
any extensive analysis of the “true threats” doctrine” permitting the
lower circuit courts to develop it.12 They assert that “[a]lleged threats
should be considered in light of their entire factual context, including
the surrounding events and the reaction of the listeners.”13 Furthermore,
they consider it important that the communicator of the alleged threat
should be cognizant of how the recipient of the communication might react.
Only in the circumstance that the communicator realizes and expects the
averse reaction should they be responsible.14
The ACLU offers two tests by which to ensure these measures, within which
it refers to the other factors, as discussed above, that it considers
necessary to declare speech as unlawful. “The objective test requires
that the statement be reasonably interpreted by the listener, in light of
its relevant context, as communicating a serious intent to inflict or
cause harm. The subjective test requires that the speaker specifically
intend that his statement be understood by the listener as such.”15
“According to the approach urged by this amicus, evidence satisfying both
an objective test and a subjective test
should required before one may properly conclude that a threat is a “true
threat,” thereby falling outside of the
protections of the First Amendment. This requirement of both an objective
and a subjective test is necessary to
ensure that protected political advocacy is not chilled in the name of
punishing threats. Thus, plaintiffs should be
required to show the following:
- Considering the alleged threat in light of its relevant factual
context, would a reasonable listener (or
recipient of the communication) interpret the statement as
communicating a serious expression of an intent
to inflict or cause serious harm to the listener, i.e. would a
reasonable person perceive the statement as a
threat? (This is the objective test.)
- Did the speaker intend that the communication be taken as a
threat to inflict or cause serious harm to the
listener, thereby intending to place the listener in fear for his
or her safety, regardless of whether the speaker
actually intended to carry out the threat? (This is the subjective
test.)
Moreover, in determining whether an alleged threat is a “true threat,”
thereby undeserving of constitutional
protection, a court should also consider other related factors, including:
(a) how explicit and unambiguous is the
alleged threat; (b) is the alleged threat directed to a specific
individual or to specific individuals, rather than to a
group at large; (c) was the alleged threat communicated to the listener
and, if so, in what manner; and (d) does the
alleged threat threaten to inflict or cause serious harm. These are not
necessarily all of the factors that should be
considered, but they appear to this amicus to be among the most important
considerations for ensuring that liability
is imposed only upon “true threats” and that speech protected under the
First Amendment is neither punished nor
chilled.”16
1 Macavinta, Courtney. “Conviction in online threat.” CNET. February 11,
1998. Accessed on 3/10/99.
http://www.news.com/News/Item/0,4,19046,00.html
2 “Court Convicts in Hate-email case.” Communications Media Center at New
York Law School. February 13, 1998. Accessed on 3/10.
http://www.cmcnyls.edu/Bulletins/CCHtEmaC.HTM
3 Hogenson, Scott. “Nuremberg Files Returns to Internet.” Conservative
News Service. February 24, 1999. Accessed on: 3/8/99.
http://www.conservativenews.org/indepth/
archive/199902/IND19990224d.html4
“Decision with a blunt object.” Oregonian Live. February 3, 1999.
Accessed on 3/10. http://www.oregonlive.com/news/99/02/ed020301.html
5 “United States vs. Jake Baker.” ic.net. June 21, 1995. Accessed on
3/11/99. http://ic.net/~sberaha/baker.html
6 “United States vs. Jake Baker.” ic.net. June 21, 1995. Accessed on
3/11/99. http://ic.net/~sberaha/baker.html
7 “United States vs. Jake Baker.” ic.net. June 21, 1995. Accessed on
3/11/99. http://ic.net/~sberaha/baker.html
8 “Legal cases.” EFF. Accessed on 3/11/99.
http://www.eff.org/pub/Legal/Cases/Baker_UMich_case/
9 “United States vs. Jake Baker.” ic.net. June 21, 1995. Accessed on
3/11/99. http://ic.net/~sberaha/baker.html
10 “United States vs. Jake Baker.” ic.net. June 21, 1995. Accessed on
3/11/99. http://ic.net/~sberaha/baker.html
11 Green, Ashbel S. “Jurors still out on abortion case.” Oregonian Live.
February 2, 1999. Accessed on 3/9.
http://www.oregonlive.com/news/99/02/st020220.html
12 “ACLU Foundation of Oregon Amicus Curiae.” ACLU. Accessed on 3/12/99.
http://www.aclu-or.org/aclu/ppbrief.htm#II
13 “ACLU Foundation of Oregon Amicus Curiae.” ACLU. Accessed on 3/12/99.
http://www.aclu-or.org/aclu/ppbrief.htm#II
14 “ACLU Foundation of Oregon Amicus Curiae.” ACLU. Accessed on 3/12/99.
http://www.aclu-or.org/aclu/ppbrief.htm#II
15 “ACLU Foundation of Oregon Amicus Curiae.” ACLU. Accessed on 3/12/99.
http://www.aclu-or.org/aclu/ppbrief.htm#II
16 “ACLU Foundation of Oregon Amicus Curiae.” ACLU. Accessed on 3/12/99.
http://www.aclu-or.org/aclu/ppbrief.htm#D. A Suggested Methodology for
Considering True
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