Freedom of Speech and True Threats
2001; Wiley; Volume: 25; Issue: 1 Linguagem: Inglês
ISSN
0193-4872
Autores Tópico(s)Freedom of Expression and Defamation
ResumoI. INTRODUCTION Consider following scenarios: You are a physician at a local Planned Parenthood clinic. As part of your job you perform abortions. There have been protests outside clinic and you have heard about murders of several doctors around country who were killed because they performed abortions. One day a colleague calls you and tells you that an anti-abortion group has put up a website which lists names and home addresses of doctors who perform abortions. When you look at website you find your name and address on list along with strong language saying that you and others on list will one day be held accountable for your crimes against humanity. Some of doctors' names have black lines through them. You recognize these names as people who have been murdered by antiabortion fanatics. Can you successfully sue creators of website for threatening you and causing you severe emotional distress, or is this website protected by First Amendment? (1) Now imagine yourself a woman in college. You hear from a friend that a classmate has posted a story about you on Internet with a newsgroup called sex stories. You read posting and find a gruesome and detailed story of narrator torturing and raping you. The story culminates in a description of you being doused with kerosene and lit on fire. The posting uses your real name. You are scared and call police. Should your classmate be convicted of threatening you? (2) You attend a rally in support of a boycott of white-owned stores whose owners will not hire African American employees. You are aware of several violent acts against blacks who have ignored boycott including firing of shots into house of one boycott violator. The leader of boycott speaks at rally and warns boycott violators that their necks will be broken. You had been considering returning to some of white-owned stores but are frightened by leader's words. Should leader of boycott be arrested for threatening boycott violators or is his speech protected by First Amendment? (3) As a child you grew up watching Lone Ranger on television. From this show you picked up phrase the silver bullets are coming which signified to you that Lone Ranger was on his way to save day. Many years later, after an acrimonious divorce, you contact an FBI agent with newfound evidence that implicates your ex-father-in-law in an illegal bankruptcy scheme. On your voice-mail message to FBI agent, rather than just saying you found new evidence, you use your favorite childhood phrase: the silver bullets are coming! Shortly after leaving this message, you are arrested for threatening a federal officer. Should you be convicted? (4) As above situations show, there are many different contexts in which statements might be considered threatening. Many courts and scholars have focused only on one or two situations individually. The problem with not considering a broad spectrum of scenarios is that too often scholars and courts rely on gut judgments rather than on a clear and predictable test. The main purpose of this article is to create a test for determining when a statement is a threat not deserving of First Amendment protection. The law surrounding threats has gained recent attention from commentators after decades of virtual anonymity and unaddressed confusion among lower courts. The sudden interest in threats has been sparked primarily by proliferation of widely disseminated Internet speech. (5) In particular, two high-profile cases have shined spotlight on threats: so-called Nuremberg File case (6) and Jake Baker case, (7) both of which I used in above hypotheticals. Despite this recent interest, three major hornbooks and treatises on First Amendment and Constitution still do not have an index listing for true threats. …
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