I don’t know about the rest of you. But where I live, every so often someone is accused of making a terrorist threat. Typically they face up to 20 years in prison, although I think the judge has wide discretion.
The thing that perplexes me, is why what they are doing isn’t protected by the First Amendment.
I have a law dictionary which I have unfortunately misplaced. But I brought it up before. I think it was written over 20 years ago by a lawyer named Gifis. Or Grifis? Anyway he said for something to not have First Amendment protection, it has to pose a ‘clear and present danger’. Falsely yelling ‘Fire!’ in a crowded theater and all that.
Plus when I was in government class in HS they said there is an important distinction between someone saying ‘I think the school should be burned down’ to ‘burn it down!’.
I’m not saying that arresting some people who make a threat is not often a good idea. I am just confused where the First Amendment comes in.
The difference between me walking over with my trusty assault rifle [or icepick?] and whacking you when you open the door, and having you loaded onto a train and hauled off to a death camp.
Storm trooper on Krystalnacht delivering a buttstroke to the head is the I’m going to kill you, Hitler ranting about Jews being evil is I think you should be killed.
I believe the current standard is that a speaker must be advocating illegal activity which is imminent and likely.
So if I said “Comrades, prepare yourself for the Revolution and be ready when the time comes” and you went out and bought a gun and started shooting people, my defense would be that I was making a general statement about preparing for future conditions not telling my listeners to start the revolution. I had not given any call for imminent action.
Or if we were hanging out at the neighborhood bar, complaining about some politician and I said “Somebody ought to shoot that son of a bitch” and the next day you went out and actually shot him, my defense would be that I didn’t think it was likely that anyone would act on my statement.
But if we were terrorists and I told you “Okay, we’re going to blow up that office building. I want you to plant the bombs on Sunday and set them to go off on Monday morning.” And you do it but get arrested while planting the bombs and I subsequently get arrested as well. I can’t argue “Hey, I didn’t plant any bombs or do anything illegal. I just talked about it and speech is protected.” Because I told you to commit a specific illegal act and I expected you to do it.
There are many types of speech that are not protected by the first amendment. Each has its own test. The clear and present danger standard is one such test, but obviously doesnt apply to, say, libel. It’s also not the standard for threats.
A statement is considered a “true threat” not subject to first amendment protections if a reasonable person would interpret it as a real and serious communication of an intent to inflict harm.
And even that is no longer current law. Falsely shouting fire in a crowded theatre was held to be unprotected speech under the “creates a clear and present danger” standard, which was replaced with the “incites imminent lawless action” standard in the 60s.
And that’s a good thing - the Schenck case the “fire in a crowded theatre” trope came from used that standard to allow prosecution of draft protestors.
Quite a bit. One is wishing for a particular state. One is a declaration that one is going to act directly to ensure that a particular state is realized.
