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Home / David Ziemer / Dealing with judicial death threats

Dealing with judicial death threats

Last month, a New Jersey man was arrested and charged with making death threats against three judges on the Seventh Circuit Court of Appeals.

The motivation for the threats was the unremarkable opinion in NRA v. City of Chicago, No. 08-4241 (June 2, 2009). Without deciding the merits of the Second Amendment issue, the court held that it was bound by the following U.S. Supreme Court precedent: when the Supreme Court has held “X,” lower federal courts lack authority to hold “not X,” even if other precedents strongly suggest that is how the Court will hold if and when it is squarely presented with the issue. Albrecht v. Herald Co., 390 U.S. 145 (1968).

Without question, the defendant will interpose the First Amendment as a defense to the charge — a defense which should be frivolous, but which, unfortunately is not, so muddled is the Supreme Court’s free speech jurisprudence.

The free speech muddle began with Schenck v. U.S., 249 U.S. 47 (1919), in which the Supreme Court upheld the conviction of a man guilty of nothing more than circulating fliers advising resistance to the draft during World War I. It was in Schenck that the Court invented the analogy of falsely shouting “fire” in a theater and causing a panic. It was also in Schenck that the High Court came up with the “clear and present danger” standard.

But the “clear and present danger” standard is too vague to mean anything, and Schenck’s speech was core political speech that should be protected by the First Amendment.

The standard in Schenck was modified in Brandenburg v. Ohio, 395 U.S. 444 (1969), in which the Supreme Court limited it to speech constituting “incitement to imminent lawless action.” The conduct at issue, which the court found protected, was burning a cross and making speeches derogating blacks and Jews.

Finally, in Virginia v. Black, 538 U.S. 343 (2003), the Court limited prosecution of speech to “true threats” — threats which “communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

Like Brandenburg, Black involved a cross-burning. The Supreme Court held that a state may ban cross-burning, but only if it is carried out with the intent to intimidate.

Against this backdrop, courts must weigh whether the First Amendment protects threats to murder a judge.

In my view, a far more sensible standard would be that set forth in Chaplinksy v. State of New Hampshire, 315 U.S. 568 (1942).

In Chaplinsky, the court wrote that there are categories of communication to which the First Amendment does not extend because they “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” (Unfortunately, the result in Chaplinsky was deplorable. The Supreme Court upheld the defendant’s conviction, merely for saying that the whole government of Rochester, N.H. consists of fascists and racketeers (something that I suspect was likely true).)

There’s no question First Amendment protection should not extend to some types statements — such as death threats. However, in the briefs of the attorneys and court opinions in this case, the lion’s share of argument will be squandered addressing whether the statements constitute a “true threat,” as defined in Black.

Perhaps, as a policy matter, only “true threats” should be prosecuted or subject to prosecution. A rambling drunken threat probably shouldn’t be prosecuted, unless it is reiterated sober the next morning. But threats to kill judges, or incite others to do so, should not be entitled to any First Amendment protection, because they express no ideas worthy of protection. The same is true of falsely shouting fire in a crowded theater (or its modern equivalent, calling in a false bomb threat to a school), or burning a cross, which expresses only intimidation and the threat of violence to come, as Justice Clarence H. Thomas so aptly described in his dissent in the Black case.

Instead of wasting pages arguing whether the particular death threats against our judges constitute “true threats” or not, any court considering a First Amendment challenge should be able to dispose of it in two paragraphs, to wit:

“Some ‘utterances are no essential part of any exposition of ideas … and any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ Chaplinsky, 315 U.S., at 572. Burning a cross, falsely shouting fire in a crowded theater, conveying a false bomb threat, and threatening to murder federal judges, all fit clearly in this category. Whether to criminalize such actions is for the legislature to decide; whether to charge them is a matter of prosecutorial discretion. But none of these actions are entitled to any First Amendment protection whatsoever.”

“The only idea that can plausibly be expressed by a death threat to a judge is, ‘do what the mob says, not what the law says, or we’ll kill you.’ Such expression is not constitutionally protected.”

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