That’s not the basis of my position. Yes, I have in mind physical violence (is there any other kind?). But no, it does not have to be immediate. It does not have to be explicit either, a true threat can be implied. For example this is a conditional threat, and the condition can only be met in the future:
A guy walked up on me and said to me, “Leave Trump alone. Forget the story.” Then he leaned around and looked at my daughter and said, “That’s a beautiful little girl - it’d be a shame if something happened to her mom.” And then he was gone.
This is not immediate because the threat is conditioned on leaving Trump alone and forgetting the story. The victim is threatened with violence if, in the future, she bothers Trump by going public with the story. Neither is it an explicit threat. An explicit threat would have gone, ‘if you go public with this story I will make your daughter an orphan’. Here the threat is implied - ‘it’d be a shame if something happened to her mom’. Yet I think everyone will agree that this is a true threat.
Contrast with an email such as,
Subject: Your Plan
Body:
What do you think the coward hiding under his dunce cap and face mask thinks every time he hears about a Black child has been aborted?
[image of Klansman performing Nazi salute]
Be pro-life as if your race depended on it! It’s the American thing to do!
You have written that an objection made in good faith would have used words, but the email does use words. Those words indicate that Ms. Walker’s plan on the issue of abortion is tainted by association with Ku Klux Klan ideology. The logic is fallacious but not uncommon. The copy is adversarial, but not out of place in the realm of politics. The use of the image is gratuitous, shocking, and distasteful, but not useless. It serves an express rhetorical purpose, and possibly a practical one too (making sure the email is noticed rather than instantly trashed). If I thought the author was acting in bad faith, that the words were insincere and the true intention of sending this email was to scare Ms. Walker by threatening her with a lynching, I would say sending that email constitutes a threat. But, I don’t think that is likely.
Well, I go a bit further than you. I don’t think the email is likely to have been intended as a “symbolic proclamation” (threat) of conditional violence, either. Neither do I think it implies that violence against Ms. Walker is likely to occur, imminent or conditional. If the email is not explicitly or implicitly threatening or promoting violence against her, the email cannot violate the statute and the lawsuit is doomed. This is because, as I wrote above, the law deals with threats of violence, not mere intimidation.
Don’t take my word for it, read the statute yourself. The West Virginia Record reports that the lawsuit was brought under W. Va. Code § 61-6-21. Quote,
(a) All persons within the boundaries of the State of West Virginia have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex.
(b) If any person does by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the State of West Virginia or by the Constitution or laws of the United States, because of such other person’s race, color, religion, ancestry, national origin, political affiliation or sex, he or she shall be guilty of a felony, and, upon conviction, shall be fined not more than $5,000 or imprisoned not more than ten years, or both.
(c) If any person conspires with another person or persons to willfully injure, oppress, threaten, or intimidate or interfere with any citizen because of such other person’s race, color, religion, ancestry, national origin, political affiliation or sex in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the State of West Virginia or by the Constitution or laws of the United States, and in willfull furtherance thereof to assemble with one or more persons for the purpose of teaching any technique or means capable of causing property damage, bodily injury or death when such person or persons intend to employ such techniques or means to violate this section, each such person shall be guilty of a felony, and, upon conviction, shall be fined not more than $5,000 or imprisoned not more than ten years, or both.
[…]
Now something I don’t understand is how Ms. Walker can initiate a lawsuit for damages while citing a criminal code. Normally the State will prosecute crimes. Or perhaps she is only seeking a restraining order - that makes more sense.
Nevertheless I think public representatives have a higher bar for personal restraining orders than a private individual. I wouldn’t use the usual preponderance of the evidence standard because a restraining order obtained by a state legislator against a constituent implicates a person’s right to petition. If a restraining order were granted it should be very narrow, perhaps limited to prohibiting images of Klansmen. We don’t have a conviction, an arrest, an indictment, etc. And I don’t personally think there’s a threat of violence by any standard.
~Max