Sua, forgive me if I’m being dense, but am I right in thinking that the distinction you describe is between espousing repugnant views and incitement to imminent lawlessness? that it’s okay to talk like an asshole, but it’s not okay to exhort people to go commit a crime right now?
Because that distinction makes sense to me, but I’m not sure it addresses the “true threat” question." In the true threat scenario, the racist is saying, “We must have a race war, and that means that we white people are going to kill you black people. We are making our plans, and one of these nights, we will drag you out of your house and hang you.”
What is your stance on whether such speech would be legal – assuming it’s said to a black audience? My understanding is that it wouldn’t be prohibited under the incitement-to-lawlessness rules, but it would be prohibited under the true threat rules.
Daniel can you give me the case citation because there are about 50 Watts v. United States cases.
Not necessarily Daniel because you are assuming the U.S. Supreme Court is not interpreting the definition of a “true” threat to mean it must likely produce imminent lawless action or does or does produce lawless action. I am not sure how they are interpreting a “true” threat and consequently I will need to read the opinion. I would argue the very language used by Watts in your post of " serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," to be compatible with the likely to produce imminent lawless action standard in Brandenburg. Would we consider a threat “serious” if there is no immediacy of it being committed? Would we consider a threat “serious” if nobody is willing to act upon the threat? I don’t think so and I think the word “serious” means it must be a threat likely to produce imminent lawless action.
Lets assume for the sake of argument the court is adopting the standard laid down in Brandenburg. v. Ohio. The standard is the advocation of illegal activity or lawless action is not protected when directed to likely produce imminent lawless action (Pope v. Illinois) or lawless action materializes.
Additionally political speech is at the core of the First Amendment. New York Times v. Sullivan, Tinker v. Des Moines. The U.S. Supreme Court will go to strict scrutiny when a state law or federal law impinges upon political speech.
Now advocating illegal means to effectuate political ends or social change is permitted as stipulated by Brandenburg and Terminello v. Chicago. This would include advocating a race war, the killing of minorities, and even particularizing which minorities to target. In Brandenburg and Terminello v. City of Chicago both speakers advocated the use of illegal means to effectuate their political and social ends. They advocated the killing of Congressman, judges of the Federal bench and the President because of their integration policies and support for minorities. Additionally they advocated the use of violence against minorities in particular negroes and Latinos and Catholics and Jews.
Now in both cases the U.S. Supreme Court upheld their right to advocate lawless action.
Now the very important question is can the Klan say this although minorities can hear them? Absolutely they can. From a common sense point of view think of all the occasions the Klan has held a rally in the center or town espousing hate speech, stating a race war is necessary and other threats like look out Ni**er the Klan is getting bigger all within ear-shot of African Americans and other minorities and no law was violated. The KKK was not prosecuted although a prosecutor or two probably wanted to. Why? Because according to Brandenburg the speech must be permitted to continue unless it can be shown the message is likely to produce or does produce imminent lawless action. Under this context the state can’t really show the likely to produce imminent lawless action beyond a reasonable doubt and hence the Klan message is protected although some minorities can hear it.
As Justice Douglas noted in Terminello, “function of “free speech” under our system of government is to invite dispute and “free speech” may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
What about the occasion the KKK marched through a Jewish neighborhood displaying the Swatizka? This was the issue in the Skokie case. The Swatizka certainly is not expressing a message of integration among the races. Rather it is expressing the most egregious form of conduct, namely the killing of minorities. The Swatizka has a particular meaning in relation to Jews since Hitler and his Nazi party killed 6 million of them and the Swatizka was the symbol of the Nazi party responsible for committing genocide. Thus, the Swatizka served the same person of advocating the killing of Jews as if the KKK had verbally articulated the message. However, the Court of Appeals upheld the KKK’s right to march through the Jewish neighborhood and threats of violence, fear, or apprehension on behalf of the Jewish community was not enough to preclude the Klan from conducting their march.
In the case of Terminello “the Petitioner in his speech condemned the conduct of the crowd outside and vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation’s welfare.
The trial court charged that ‘breach of the peace’ consists of any ‘misbehavior which violates the public peace and decorum’; and that the ‘misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.’ Petitioner did not take exception to that instruction. But he maintained at all times that the ordinance as applied to his conduct violated his right of free speech under the Federal Constitution.”
Justice Douglas stipulated, " That is why freedom of speech…is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand."
Now going off of these cases and the principles set forth in them I would be inclined to say the KKK may hold a rally in a stadium by a black neighborhood and espouse hate speech. The Klan in my opinion would be permitted to advocate a race war and make deriding and deragatory statements about African Americans although they can be heard by African Americans. This would be no different in my opinion than the KKK marching through a Jewish neighborhood flying the Swatizka. Unless it can be shown the speech by the KKK is directed to producing imminent lawless actions and is likely to produc such action, then they must be permitted to continue with their message. The fact the listener is annoyed, stirred to anger, or made to feel intimidated is not enough because the First Amendment requires to first protect the message and allow the message to continue because speech is the cornerstone of the First Amendment.
Now Sua’s distinction is compatible with the Watts, Brandenburg, and Terminello decisions.
Lets take this example by Sua. If the speaker just advocates a race war is coming and it is necessary to cleanse America, save American society, and save the U.S. government is not a serious threat especially if at the time the message is made they are not in any position to act upon the message.
Now it would change if the speaker said it was necessary to start the race war immediately, that delay was unacceptable, and those in attendance actually had the means to begin the war immediately, such as they were all armed with guns. Now this would be a seroius threat certainly much more serious than the one before. In fact in comparison the former speech is not serious at all whereas the latter is serious because they have the means to begin the war and they are in a locale where the inhabitants of the neighborhood would be the first to feel the effects of this race war.
Well I think you have a conflict and in my opinion must be resolved in light of the precedent in favor of protecting speech. As noted before advocating lawless action is permitted by the First Amendment and all you are doing here is finding a way around the advocation of lawless action with an intimidation argument. So essentially with your intimidation argument you have effectively censored speech that the U.S. Supreme Court has already stated was constitutional. You have snuck censorship in through the backdoor because the front door was closed when the U.S. Supreme Court said speech advocating lawless action is protected. If I can find this is what you are doing in your argument and I am only a law school student, then the 9 Justices on the U.S. Supreme Court with a more trained eye are going to notice this right away and not be to happy. This is why they carved a Huge exception to the cross burning statute in Virginia. Cross bunring is protected when it is used as political speech and this would seemingly include those instances where people felt threatened or it was the intent of the speaker to make some feel intimidated so long as the message is political.
Political speech in most occasions if not all is going to be protected by the U.S. Surpeme Court.
Jimmy, I’m afraid I can’t point you toward a cite for the Watts case, above – it was Sua’s example, back on the first page.
You make a compelling argument there, that the “true threat” language is at the very least in conflict with protected political speech.
Sua, if you’re around, could you tell me the context of the “true threat” language you quoted?
One question you ask in your post is whether anyone would take seriously a threat that’s not going to occur. I certainly would: if someone said, “I never forget a face, and one of these days when you least expect it, I swear to you I’ll shoot your face clean off,” I’d be frightened. I think you’re reading quite a bit into the “true threat” language by interpreting “serious” as “imminent.”
I’m not, however, trying to sneak censorship in the back door. I’m just trying to figure out how the law works on this issue. I’m not a law student, just a fan, and I’m interested in understanding how it works.
Never mind I found the cite. The speaker made a comment that he has received his draft card. He indicated a likelihood he would have to go and fight in the Vietnam War to his dismay because he did not want to kill his brethren. He stated the first he would want to put in his gun sights was the President of the United States. The U.S. Supreme Court upheld the defendant’s right to make this statement.
Threats, the U.S. Supreme Court noted, must be taken in context. Threats must be considered in context of the message.
I might also add this is about classifications of speech. Is it a political message? If so, then it is most likely going to receive protection. I would argue if the statement made by the defendant in Watts, who said the first person in his sights would be the President of the U.S. can be constitutionally protected, then making more abstract and general threats in the context of a political message, such as kill the minorities bringing down society and the political system, i.e. a race war is necessary, eradication from America African Americans and Jews, would from a common sense point of view also be protected.
Now the fact remains that some may be easily intimidated. Not all people are intimidated in the same way. Some may be more easily frightened and moved to apprehension than others. Consequently, a mere feeling of intimidation or fear on behalf of the perceiver cannot be the standard for censoring speech.
As I noted before, the KKK dressed in the military dress and uniform worn by the Nazi party and waving Swatizkas while marching through a Jewish neighborhood, a neighborhood filled with Holocaust survivers, is likely to result in some feeling of intimidation, fear, and apprehension on behalf of the Jewish perceivers. According to your reasoning the speech can be censored or interrupted so long as 1 person feels intimidated. I am arguing this standard conflicts with the entire purpose of the First Amendment, which is to protect speech. You have successfully interrupted a political message because some of the perceivers are afraid.
I think if the threat is generalized and in the context of a political message, then it is going to be protected. Why? Because the First Amendment has as its cornerstone political speech to be protected and the states and federal government must side on protecting the ability to articulate the message and not side on the person who is easily intimidated or afraid. As I noted before your standard for censoring speech does not adequately protect speech but places it hazardously at the mercy of its perceivers.
But as I have demonstrated with quotes and opinions the mere fact speech makes people angry, upsets people, offends people, or presents the possibility of fights or public unrest are not enough to censor the message or interrupt the message because the First Amendment requires the message and the speaker be protected and permitted by virtue of the wording of the Amendment itself. Similarly speaking this same reasoning is applicable to feelings of apprehension and fear. We simply can’t place speech at a weakened position and shut up a speaker because some are afraid. This explains why cross burning when done as a political message is protected even if some one is afraid.
Daniel,jimmy got it (FTR, it was a cut-n-paste from the Virginia v. Black decision).
As jimmy is giving a much more ordered and closely-reasoned explanation of the argument I would try to make if I wasn’t a drooling idiot, I’m just going to sit back and let him carry the load.
That’s not at all my reasoning. In fact, it’s almost the direct opposite. My understanding of the Watts passage was that the emotions of the victims were immaterial – that it was the intent of the speaker that had to be considered.
If I threaten to schnacfle my grobscuppeebers on you, you’re unlikely to feel threatened. If I were intending to commmunicate a serious threat to commit illegal violence against you, however, I’d still be guilty of a crime. Similarly, if I say, “I’m gonna kick your ass,” and I’m joking, but you’re intimidated by my manly self, then I’ve not committed a crime: it’s the speaker’s intent, not the audence’s reaction, that determines whether it’s a crime.
At least, that’s how I read the “true threat” clause.
Thus my quibble with Sua when he seemed to suggest that crossburning shouldn’t be held as illegal intimidation if a reasonable victim, looking at recent history, wouldn’t be intimidated by it: my understanding was that the audience’s reaction was immaterial.
I do wonder about the draft-dodger comment. First, it betrays my ignorance: I was under the understanding that it was flat-out illegal to make any threat of violence against the president, no matter how obviously false or jocular. I might post on a messageboard , “I’m going to kill Frankie the Butcher,” but I’d literally be committing a crime if I substituted the President’s name in the above quotation. What you quoted suggests that I was wrong in thinking that.
But second, if the context the Court looked at was that the draft-dodger wasn’t intending to convey a serious threat to commit violence against the President, then that would be entirely in keeping with what I’m saying: it’s the intent of the speaker (in this case the draft-dodger), not the reaction of the audience (in this case the President), which determines whether a threat occurred.
I’m unclear on why threats of a political nature would be more protected than threats of a nonpolitical nature. Sure, nonspecific threats might be protected (Kill all White People!), but it seems to me that political threats of violence, like political violence itself, present an extra danger to democracy above and beyond normal threats of violence.
I might tell Joe, “I’m going to kill you on Tuesday night if I see you outside,” and that’s an illegal threat, right? But if I tell Joe, “I don’t like black people voting, so I’m going to kill you on Election night if I see you outside,” are you saying that the political content of my threat makes it protected speech? I’d think quite the contrary: threats of political violence strike at the heart of a democracy.
When crossburning is a threat, I think it’s close to the kind of threat I’ve just made against a voting Joe: crossburning tends to be used as a threat against minorities who, in the eyes of the crossburners, are taking too active a role in social life. If a crossburner is trying to communicate a threat of violence for political purposes, the political purpose is likely to be trying to keep the audience from exercising her rights. And that seems to be a type of threat more worthy of prosecution than a simple drunken thrat made down at the bar.
All right Daniel the confusion is partially my fault for not being more clearer in my post.
In the examples such as the Skokie case I assumed in my argument the requisite intent of the KKK to wear Nazi uniforms and wave the Swatizka was to intimidate or instill fear in the Jewish perceivers. Why wave such a flag and wear such uniforms if it were not to intimidate those who are the targets of the message? The Jews were the targets of the message and this is evident by the fact they chose a Jewish neighborhood to march through. They wanted the Jews to perceive their message. The Jews were the target of their message. The also knew survivors of the Jewish holocaust lived in the neighborhood.
What was the KKK’s message? Was it one of racial harmony? Was it one advocating racial integration? Was it one of love for members who are non-white? Of course not. The KKK’s message was very clear. Their message was one of racial hatred for the Jews. They chose to wear the uniforms of a political party who killed 6 million Jews. They chose to fly the flag of a political party in Germany who killed 6 million Jews.
Did they make all of these decisions to make the Jews feel welcomed? Did they make these decisions to make the Jews feel loved? Did they make these decisions to make the Jews feel comfortable? No of course not. These decisions were made with the purpose of angering the Jewish perceivers and instilling feelings of fear or apprehension. If this was not their intent or purpose, then why choose to represent a regime and its symbols that hated them to the point of sequestering them in concentration camps for the sole purpose of killing them in mass numbers of 6 million? It would seem to me the KKK had the requisite intent based on these facts to make the Jewish community experience some feelings of apprehension and feel some intimidation. However, despite all of these facts, and the fact a fight between the KKK and a Jewish organization was possible, the KKK was permitted by the court to conduct its march. Why?
Why did the U.S. Supreme Court carve an exception to the Virginia cross burning intimidation statute? Because it must be admitted that at times the purpose of the message is to some extent intimidate and in the context of political speech intimidating speech can play a great role in affecting social and political change. The point of advocating illegal conduct is to intimidate people into doing things but this intention on behalf of the speaker does not render the speech unprotected. Advocacy of illegal conduct may persuade the public that the law and social attitudes should be changed. Intimidating speech is perhaps the best way to get the attention of your government to acknowledge your voice and perhaps upon such acknowledgement will cede want the speaker wants just to shut him up and send him home.
There needs to be a distinction between generalized and abstract threats by advocating lawless action and what you are doing here. There is a vast difference between a speaker talking to a mass of KKK members in a black neighborhood advocating the propriety of a race war to save America, to save the political system, and to save society and what you are doing in the following quote:
Here you specifically as a person are threatening not a group of people but an individual in particular. You are stating what “you personally” are going to do as opposed to speaking to a crowd of people. This quote is a much more personalized threat than the KKK having a rally in a black neighborhood advocating the necessity of a race war to save America, the political regime, and society when of course one of the purposes for mentioning the necessity of this war is to intimidate the black perceiver or at least frighten them. The latter would be protected whereas the former would not.
Another fact that distinguishes your quote is that it is not a political message. The mere fact you included a reference to an election box does not make your message one of political nature. You are simply threatening to kill a black man for no other reason than you do not like black people. There is no social value in your statement.
However, a democracy that values liberty requires threats of political violence be permitted. This was one of the entire purposes of the First Amendment. James Madison and Thomas Jefferson repudiated the Sedition Act. Crudely the act made it a crime to speak out against the Federal Government. Madison and Jefferson rejected the law stating unabated political speech is Necessary to a democratic society.
According to your reasoning the Framers and Founding Fathers who wrote the First Amendment rejected their own speech when they called for a revolution against England. The Declaration of Independence recognizes the right of the people to overthrow any government when it abdicates its authority to protect property rights, liberty, and the life of its citizens. Implicit in this right has to be the ability to advocate a revolution. What good is a right of conduct if this conduct can be circumvented by the inability to advocate the exercise of this right?
Under this proposition advocates of Marxism could not express every tenet of their faith since they advocate violent revolution, like our Founding Fathers, to effect political change. Yet as it has been mentioned before threats advocating the use of lawless conduct to effect political change, such as the violent overthrow of our government, is protected via Brandenburg v. Ohio. Threats of political violence are constitutionally protected under the Brandenburg rationale.
Now what does this have to do with cross burning, the Virginia statute, and the Supreme Court opinion? I think the fact an individual burns a cross with the requisite intent to intimidate is not sufficient to censor the message if it is done in the context of a political message or has a political purpose attached. There have been instances where the speaker was intending to intimidate some hearing the message and yet was protected because it was a political message or one concerning a public issue. Such as the KKK marching through Skokie or a Klan rally in the middle of town spewing hate speech. So I think focusing simply on the mental element of the speaker is not enough. There must also be a determination as to the classification of the speech to assess whether the speech is even protected by the First Amendment. If it is speech at the cornerstond of the First Amendment, such as political speech, then I do not think just because the speaker has the requisite intent to intimidate some of the listeners of the message justifies censoring the message. I think this is why the U.S. Supreme Court carved out the “political exception” to the Virginia statute. At times intent of the speaker is not sufficient because this will not adequately protect speech.
As I noted before all you have done is snuck censorship in through the backdoor.
Your understanding is largely correct. As I stated earlier, I was not making a legal argument (“this is what the law is, and this is how the Supremes screwed up this case”), but instead a policy argument (“this is how the law should be”).
Jimmy1 is ably handling the legal argument, so I’ll just pop in again to address the policy argument.
My policy argument is based upon a concept I’m adopting from fraud law called “reasonable reliance.” In fraud, a person must make a material misrepresentation to you to induce you to act or not act. However, for a fraud to occur, you must rely upon that material misrepresentation, and that reliance must be reasonable.
If someone offers to sell you the Brooklyn Bridge, and you work for the City of New York’s Bridge and Tunnel Authority, it is not reasonable for you to rely on the other person’s claim to own the Brooklyn Bridge. Accordingly, even if you gave the guy $500,000, you cannot recover that money from him in an action for fraud (there may be other applicable causes of action, but let’s set them aside for now).
The reason is that the law is supposed to protect you from others, not from yourself.
I submit that this concept should be applied to intimidation. The injury caused by intimidation is if you change your conduct, to your detriment, in response to the threat (effectively, the same injury as in fraud). If a person makes a meaningless/unenforceable threat to you, you should suffer no injury, because if you behave rationally/reasonably, you will not change your conduct. The true cause of your injury is yourself, not to person who issued the meaningless threat. And the law shouldn’t protect you from yourself.
Jimmy, I’m still having trouble believing that that’s the state of the law – although I could be wrong, it seems very silly.
If I run down the street shouting, “I’m going to kill everyone!” my speech will be less protected than if I shout, “I’m going to kill all black people,” and that’s less protected than if I shout, “I’m going to kill all black people because I want to start a race war to purify America”? That seems ass-backward to me. But maybe that’s how it is.
I think you’re incorrect when you say that my previous threat against Joe wasn’t politically motivated: on the contrary, that’s an almost canon threat of political violence here in the South. Roving KKK bands would tell specific black people of the dire consequences of showing up at the ballot box, and those black people that risked the KKK’s ire might hang from a tree within the week. In what possible sense would the above threat to Joe not be considered a political threat?
True, it’s a threat to a particular person, not a threat to a group, and that’s an important distinction. But if that’s where the threat runs against the law, would it become protected speech if I were talking to Joe and Michael at the same time? How big a group do I need to be threatening with violence before it becomes protected speech?
I also disagree that a Nazi marching in uniform through a Jewish neighborhood is equivalent to the above threat to Joe. The Nazi is probably intending to threaten the Jewish residents, sure, but he can always claim something like, “I was just celebrating my racist asshole ancestry,” the same defense that I think a crossburner could raise. There’s a big difference between acting in a way that conveys a subtle, nonverbal, deniable threat, and speaking a specific, unambiguous threat.
I’d think that policywise, any ambiguity in a potential threat should be interpreted in favor of the speaker – that’s where “beyond a reasonable doubt” comes into play. A uniform, a crossburning on one’s own property, a stated preference for shooting a politician over shooting a Vietnamese soldier – these are all ambiguous political threats that should be protected speech. But when someone’s threat is unambiguous – whether it’s a crossburning on a black family’s lawn, a promise to shoot a politician, or a threat to kill any homosexual who comes into a bar – it shouldn’t be protected speech, whether or not the threat is politically motivated.
Finally, I have no trouble believing that the Founding Fathers would find their own revolutionary speech illegal. As Shay and his followers found out, it’s not like they found revolutions to be legal. The Founding Fathers believed that political violence was worse than normal violence; it seems reasonable to me that political threats should be worse than normal threats.
It’s not silly; there are gradations on how much protection types of speech receive and, IMO, pretty sensible ones. Commercial speech receives less protection; obscenity and indecent speech, ditto; and political speech receives the most protection. Political speech was the main concern of the FFs - the ability to communicate ideas, criticize the government, and organize political movements need the highest protection for a democracy to function.
Your objection is that the content of some political speech is not worthy of (much) protection. As a value judgment, you are probably correct, but that’s just the problem. Weighing the content of political speech requires us to apply our values to the speech - and that means that we would be able to censor speech we don’t agree with.
It is therefore considerably safer to place an (effectively) blanket protection on the content of political speech.
To be perfectly honest Daniel all of these statements may be protected. I don’t think you are grasping the distinctions between what you are saying in these statements and the one following:
I have made the distinctions before. The distinctions between this quote and your statements are conspicuous. There is not likely a court in America or a prosecutor in any of the fifty states likely to seek a prosecution against for the statements you make in the first quote but they would be for the statements you made in the last quote largely because of the factual differences between the two.
Well I am just a law student who studies this subject so I guess I can’t be expected to know what I am talking about. However, the fact of the matter is there is a vast difference between saying something as a result of a “political motivation” and the “message” itself being a political message. Nor does labelling the conduct a “political threat” bring it in the ambit of what the U.S. Supreme Court considers to be a “political message”.
An example of a political threat is the one used by Scalia in RAV v. St. Paul Minnesota. Threatening to kill the President because of his social welfare policies constitutes as a political message. Threatening to kill the President because he is white or if he attempts to vote is vastly different. Threatening to kill members of Congress, judges of the Judicial branch, or members of the Executive because of their policies regarding racial integration is a political message and protected by the First Amendment via Brandenburg v. Ohio. In fact this was the message Brandenburg delivered and the U.S. Supreme Court said it was permissible. This is vastly different than threating to kill Joe because of his race or if he shows up to vote. The factual differences are what separates them into the category of political speech and non-political speech.
The Court has never articulated at what size the group has to be and perhaps focusing solely on group size is erroneous. The fact remains you are still making a personalized threat absent a political message. As First Amendment Professor Volokh at UCLA School of Law notes in his work The First Amendment the question is whether the statements are punishable threats or protected speech, protected speech because they are hyperbole (political or otherwise), threats of social ostracism, or whatever else.
You must graps the distinction that there is a difference between advocating the use of violence to achieve social and political ends and personally making threats. The former is protected even if it was the intention of the speaker to intimidate the perceiver whereas the latter is not. There is a vast difference between advocating the necessity and propriety of a race war to save society and the U.S. government and a statement made by X to blow up the Chief of Police’s home because he wants to protest police brutality.
The former is going to be protected unless the Brandenburg requirement is met. This is why the U.S. Supreme Court carved a political speech exception out of the Virginia cross burning statute. So even if the speaker’s intention for advocating lawless action was to intimidate the perceiver his or her speech is going to be protected until the Brandenburg test is satisfied. Why? Because there is a vast difference between advocating the use of violence and the type of threats used in your examples. The threats you use as examples would come under the Watts test.
Now this entire exchange operates off of the assumption that advocating lawless action can constitute as a “threat” or instill intimidation in people. I suppose advocating lawless action can be a “threat” and intimidate some people where it was the intent of the speaker to intimidate but the U.S. Supreme Court is and has construed speech advocating lawless action not as “threats” but as “incitement” and in every First Amendment or Constitutional law book they are under the topic of “incitement”. Again the most important case on this issue was Brandenburg. So assuming for arguendo the types of speech given by Brandenburg and Terminello were intended to threaten some of the listeners this message is still protected. The Court has distinguished between “advocating” lawless action and “threatening” lawless action.
Now your statements is more of what the court classifies as a “threat”. “I am going to blow up the Federal building because America’s social welfare policies have weakened the Repubilc,” is not “advocating” speech.
Of course the two threats are different. Hell I even said they were different. However, they may be similar in that the speaker’s purpose is to intimidate people. You admit the Nazi is probably intending to threaten the Jewish residents and this is all that is necessary. If it was his intention to intimidate the listener, then this is all that is necessary according to your argument. The intent of the “speaker” is all you said would be sufficient. Well here the intent of the speaker, as you admit, was to intimidate the Jews in the neighborhood and hence, your sufficient condition is met and so as a result the speech can be censored, according to your reasoning.
Not enough of a difference to escape prosecution. At least not according to the U.S. Supreme Court. The opinion in Virginia v. Black operates under the assumption that a nonverbal threat can be made and that it can be prosecutable if it were the intent of the speaker to intimidate by means of a nonverbal communication. Whether the threat is nonverbal or not is of no particular consequence. A threat is a threat regardless of the mode of communication just as a political message is a political message regardless of the mode to convey the message.
You should really do some reading into the beliefs of the Founding Fathers and the Framers. I can’t think of one of individual from either group who viewed revolutionary speech as illegal. Again there is a difference between advocating revolution, something the Framers and Founding Fathers both believed to be a an indispensable right of liberty belonging to men and invaluable to a democracy, and the conduct of Shay arming his followers and then marching towards the seat of government. Finally there is no evidence to suggest the Founding Fathers considered political violence worse than normal violence. In fact I don’t even think they made a distinction between normal violence and political violence. I am personally puzzled as to the difference between political violence and normal violence. A murder for political reasons is worse than murdering someone for non-political reasons? So the former is to be punished more harshly This distinction makes little sense.
However, lets assume for the sake of argument the Founding Fathers distinguished between political violence and normal violence. Your reliance on this distinction to state political threats(what is a political threat) should be worse than normal threats does not follow. Why?
Well first if you are assuming a statement such as the following, “It may be necessary to kill those in Congress and those Judges who continue to oppress the white race with its laws and rulings” as a political threat then it is protected and even the Founding Fathers and Framers would have wanted it protected. Why? Because to an extent you are comparing apples to orange. Political violence is different from political threats and the Founding Fathers were cognizant of this fact. An act of violence is always different from a message advocating violence. The two are not comparable. This is why the Framers and Founding Fathers sought to protect political threats.
Jimmy, is it possible to link to the court decisions you’re citing? I’d like to be able to read them myself.
Meanwhile, thanks for clarifying the difference between a “politically motivated” threat and a “political” threat. Is there a clear definition of a political threat in any decision that you’re citing?
No I can’t give a link all I can do is cite them for you. Normally I access these cases on Westlaw and one must have an account to view them on Westlaw.
However, Brandenburg v. Ohio is the dominant law at this time for incitement. Advocating illegal means to effect social and political changes, even if this speech results in some feelings of apprehension on behalf of the perceiver, is going to be protected unless it is likely to produce imminent lawless action. Again advocation of lawless action is different from threatening lawless action. From a legal perspective it is important to make the distinction.
The Skokie case is in my constitutional law book as “Skokie case” and it was decided by the Illinois Supreme Court. However, I will try and find a more formal case title.
Then there is Watts v. United States dealing with the more personal types of threats many of your examples would fall into.
Ah, well. Thanks, anyway, for the information about this. I know it sounds like I’m accusing you of being wrong above, but that’s not really my intent: as a law student, you almost certainly know more about this subject than I do. I’m just trying to figure out how the law in this area makes sense.
I may have missed it, but is there a bright line between advocating illegal action and threatening illegal action? If X is illegal and you say, “I’m going to do X,” are you necessarily threatening illegal action? What if you say, “If Y happens, I’m going to do X”?
I think understanding this difference (between advocacy and threat) would help me out, but I’m still unclear on it.