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COPYRIGHT 2006 Stanford Law School
INTRODUCTION
I. TAKING FEAR SERIOUSLY II. THE CATEGORY AS AN UNCERTAIN TEMPLATE A. A Capsule Restatement of the Law of Threats and the First Amendment (So Far) B. Imagine You Are a Juror--Six Times C. Circumstances Alter Cases--and Categories III. THREATS, FACTS, AND LAW A. The Jury's Role: Preliminary Thoughts B. Estimating Expectations of the Speaker and the Target C. The Chimera of Doctrinal Purification: Herein of the Planned Parenthood Decision and Its Critics CLOSING WORDS
INTRODUCTION
Two recent decisions, one by the Supreme Court (1) and one by the Ninth Circuit, (2) have occasioned an ink spill of Exxon Valdez proportions and no little contention. The question, broadly stated, is when the First Amendment should protect speech alleged to constitute a threat by the speaker to kill or seriously injure someone. Given the level of discord, a notable feature of the debate is the acceptance, by judges and commentators alike, of the general proposition that a threat is not protected by the First Amendment, as the Supreme Court told us as early as 1969. In Watts v. United States, (3) where the Court held that no "true threat" had been issued by the speaker, it also took the occasion to announce the "threats exception." (4)
Because the Supreme Court offered little direction for more than two decades, the state supreme courts and federal circuit courts were left to their own devices in fashioning mediating principles to define the contours of the category. On their own, these courts have achieved a considerable consensus around a general formula, even though claims about threats are made in widely diverse factual settings. As this Article shows, the prevailing formula is a set of abstractions offering minimal predictability of results from one case to the next. Remarkably, however, judges typically recite one version of the formula or another as if it were determining the outcome. The result is a collection of opinions that are long on assertion and short on evaluation of anything that matters. In the discussion that follows, we shall see the doctrinal weakness of such an approach. The threats exception, as a First Amendment category, has largely been shaped to fit the very facts it is supposed to govern.
Academic commentary on the threats exception has been dominated by an effort to provide bright-line rules of decision that will severely limit the discretion of jurors or trial judges. Such an objective is most clearly evident in writings criticizing the Ninth Circuit's Planned Parenthood decision. Responding to these critics, this Article shows that the threats exception's irregular applications, and its adaptability to new forms, are unavoidable. The central inquiry in each case goes to the assignment of meaning--that is, considered in its context, does this statement express a threat, or not? Given the wide-ranging variation of the facts in these cases, precedent typically turns out to be an uncertain guide for deciding the case at hand--a classic indication that a First Amendment problem is present.
In a sizeable number of cases, judges have differed in the meanings they assign to speakers' words and behavior. In major part, their division appears to reflect divergent attitudes toward the relative importance of two objectives: constructing abstract First Amendment doctrine for the future and doing justice in the case at hand. To a lesser extent, similar disagreements are found among the commentators who discuss the threats exception. This admirable body of writing is dominated by efforts to purify abstract doctrine and to criticize courts for failing to conform to the purified models. But it is hard to force a sharply defined doctrinal grid on a zone of human behavior that is, almost by definition, disorderly. Recent proposals for hard-edged rules are not likely to be adopted by the courts. Nor would they be likely to confine the discretion of jurors and trial judges or to produce precedents that are readily translated from one case to another.
Mondrian produced some excellent art, but it wasn't representational. In this Article I seek illumination of the threats exception by descending from the generalized doctrinal formula to a number of diverse real-life experiences in which speakers' expressions have been alleged to bear threatening meanings and judges have had divergent reactions to the speakers' claims of First Amendment protection. These cases offer a series of lessons about the relation of the doctrine to the circumstances that require its application. A long concluding section illustrates the lessons through a close examination of the facts behind the Planned Parenthood decision.
The interaction of fact-finding and law declaration is, of course, a basic concern of any legal system. In considering the idea of "threat" as a doctrinal category and as a question of fact, we shall have repeated occasion to observe the accuracy of Clifford Geertz's remark:
The rendering of fact so that lawyers can plead it, judges can hear it, and juries can settle it is just that, a rendering: as any other trade, science, cult, or art, law, which is a bit of all of these, propounds the world in which its descriptions make sense. (5)
I. TAKING FEAR SERIOUSLY
For a more than a decade, the list of reasons underlying the threats exception usually has been recited from the Supreme Court's opinion in R.A.V. v. St. Paul. (6) That opinion enumerated three justifications for punishing threats: protecting individuals against the fear of violence; protecting against the disruption that a threat of violence may cause; and preempting the possible violence that may be committed by a speaker who threatens. (7) Jennifer Rothman, in her thoughtful critique of doctrinal developments under the threats exception, suggested a fourth reason: protecting those who are the targets of threats against "being coerced into acting against their will." (8)
As a prologue to the discussion of doctrine and factual settings, I want to highlight the importance of the first reason, which in my view embraces the fourth. (9) Commentary on the threats exception has been strangely dismissive of the harms caused to the target of a death threat, (10) and the discussion that follows is designed to bring those harms to center stage as a weighty aspect of the target's liberty--and thus a concern of constitutional dimension.
In Virginia v. Black, the Supreme Court, for the first time ever, interpreted the threats exception to permit the punishment of expression--the burning of a cross with the intent to frighten particular individuals. (11) Writing for the Court, Justice Sandra Day O'Connor quoted the famous opinion in Chaplinsky v. New Hampshire, (12) which read out of the First Amendment another category of speech: face-to-face insults called "fighting words." Such words, said the Court, "by their very utterance inflict injury." (13) This description was ill-suited to Walter Chaplinsky's case, but it is well chosen to describe a death threat that looks real to the person who is threatened--and most cases implicating the threats exception have involved alleged life-threatening statements about identified individuals, called "targets" in this Article. (14)
From the earliest days of the common law, assault--intentionally putting someone in fear of physical harm--was a crime and also a tort, a trespass against the King's peace. (15) In part, the early legal remedies were designed to keep the target of an assault from taking the law into his own hands. But the power of the state to protect people against being put in fear can stand on its own, independent of the purpose to avoid private vengeance. When President Franklin Roosevelt coined the expression "freedom from fear" during World War II, (16) his immediate referent surely was one well-publicized aspect of Nazi terror--the nighttime knock at the door by the secret police. But the phrase also resonates with the larger need of all humans for a sense of physical security, perhaps the most basic freedom protected by law. Deliberately putting people in fear for their lives is a grave wrong inflicting a grave harm, and it deserves a strong reaction by the state. No surprise, then, that the threats exception "has traditionally coexisted comfortably with even a strong First Amendment." (17)
Fear is one of the most basic emotions, very old in the history of human evolution. It is easy to see why. The ability to avoid death, or serious physical impairment, is crucial to any organism's survival and reproduction. We should not be surprised to learn that much of the human system of fear arousal, underlying vigilance and sustained engagement in strategies to avoid harm, lies in the brain stem--part of humans' inheritance from their reptilian past. (18) Humans have a well-developed ability to recognize threats. This perception, like any other, is "an act of categorization," (19) a decision that the situation poses a threat. (20) The perception is also a prediction, (21) based on "learned expectancies" that have a neurological basis. (22) Fear triggers a reaction with impressive efficiency. In the face of a perceived threat, the neurological phenomena of defense conditioning occur in an instant, and they make an enduring impression--perhaps lasting for a lifetime. Fear is especially likely to continue when the threat in question is a death threat. "[W]here consequences are grave, expectancy concerning what may be encountered does not change easily...." (23) As Joseph LeDoux says, "a predator will always be a predator." (24) Further, the "contextualization of fear--that is, the regulation of fear on the basis of the situation we are in"--has its own basis in the physiology of the brain. (25)
Death threats are particularly harmful, for they trigger short-term fear and long-term anxiety. For some purposes, one can distinguish between fear and anxiety: "Classically, ... fear is viewed as a reaction to a specific and immediately present stimulus, whereas anxiety is a concern about what might happen." (26) Yet, in any law-oriented analysis of the harms caused by a death threat, the distinction is of little use. One form of anxiety much discussed in recent years is post-traumatic stress disorder, in which stimuli reminding one of an earlier life-threatening event trigger what neurologists call fear responses. (27) Because these responses have a long shelf life, the threat can continue to preoccupy the person who is targeted long after the initial life-threatening shock. "Emotions, in short, amplify memories." (28) The brain's coordination of emotion can convert cognition, one's conscious experience, into emotional experience--thus imprinting working memory with the relevant emotional feeling, such as fear. One result is an effect on long-term memories. (29)
To put this point in legally cognizable terms, while some forms of threats may have diminishing harmful effects over time, a life-threatening experience is unlikely to follow that pattern. The stress response to a perceived physical threat is "ubiquitous amongst mammals." (30) In LeDoux's words, when stress is severe and continuous, "[y]our cardiovascular system can be compromised, your muscles can weaken, and you can develop ulcers and become more susceptible to certain kinds of infections." (31)
Such possible physical reactions, pernicious as they may be, are only one manifestation of a more basic harm wrought by fear: living with the thought that each day may be the last. Such a thought would be seriously troubling even to an inveterate loner, but for many of us, the contemplation of death surely would focus on the severance of our connections with those who are closest to us. A death threat may be most painful of all, not because one is afraid to die, but because his death would visit on his spouse and children the permanent deprivation of his love and support, over the rest of what would otherwise be his natural lifetime. The "disruption" (32) produced by a death threat is not merely the taking of protective measures, but also the need to offer protection and comfort to spouses and children who will themselves be terrified.
The shock of receiving the death threat also does not recede with time, so long as the threat seems credible. In the First Amendment context of punishing advocacy of unlawful conduct, requiring a showing of immediate incitement to unlawfulness makes good sense because it allows room for "more speech" to remedy bad speech. (33) But, in the context of a death threat, a locus poenitentiae merely extends--for a term with no end in sight (34)--the anticipation of the severance of one's treasured human connections. For the spirit of the targeted individual, or a member of the target's family, this fear is the wound that does not heal. (35)
Samuel Johnson's oft-quoted comment that the prospect of hanging wonderfully concentrates the mind (36) can be given a neurological spin that he surely did not contemplate: "[E]motion comes to monopolize consciousness, at least in the domain of fear, when the amygdala (37) comes to dominate working memory." (38) So, a death threat produces not just fear, but also the reduction of such capacities as cognition and motivation. Fear also tends to displace other emotions. In sum, when fear is severe enough, it takes away your normal life and seriously diminishes your sense of self (39)--your interpretation of your situation "with respect to others and toward the world," an interpretation "composed of expectations, feelings of esteem and power, and so on." (40)
In the language of today's constitutional law, prevention of so serious a deformation of one's sense of self must be an interest compelling enough to justify the state's punishing of death threats. To express this concern for protecting the core of an individual's sense of self is to remind ourselves that the threats exception has its own liberating purpose: to free the putative targets of threats to go about their own lives. (41) Thus we can see that the "fourth" reason for the threats exception--protecting people against coercion that forces them to act against their will (42)--is interlaced with the basic concern for protecting people from fear. (43) In one useful perspective, a death threat is a power grab. As the law of blackmail recognizes, (44) the speaker who issues a threat asserts power over the target, and the threat, if taken seriously, diminishes the power of the target:
[The target of a threat] must include, among the costs, the cost of a loss of control to himself.... [Furthermore,] a successful threat not only accomplishes the threatener's specific objective, but also demonstrates vividly his mastery. In a word, using threats can be quite satisfying. If nothing else, a threat, ultimately successful or not, usually generates an immediate response from which the threatener derives a sense of initiative and influence. (45)
In sum, a serious threat of death or great physical harm, by "reinforc[ing] a superior-subordinate relationship," undercuts the target's sense of self and provides the threatener with "a sense of his own power." (46)
Constitutional law is not indifferent to questions of power and freedom. (47) By definition, the threats exception to the First Amendment is deployed only when government, by law, has taken an active role in adjusting the power relations among private persons, as they may have been affected by threats. (48) What needs emphasis here is that a court's decision to deploy the exception is not merely a limit on a liberty, but a crucial defense of the target's liberty.
II. THE CATEGORY AS AN UNCERTAIN TEMPLATE
In the common law tradition, as Holmes described it a century ago, the law's judge-made categories normally come into being gradually as lawyers and judges come to see patterns in decisions that previously were made with only limited recognition of their relation to one another:
It seems to me well to remember that men begin with no theory at all, and with no such generalization as contract. They begin with particular cases, and even when they have generalized they are often a long way from the final generalizations of a later time. (49)
Translating this account in time and doctrinal place, one might insert the word "threat" in place of "contract," but, as we have seen, to do so would utterly mischaracterize what has happened. The Supreme Court in 1969 simply invented the category "threats" and left the term indeterminate. So, one part of Holmes's account does describe the development of the threats exception: his comment about beginning "with no theory at all." For several decades the lower courts sought, on their own, to define the category's reach. During this time, the Supreme Court referred on occasion to the threats exception, (50) but it was not until 2003, and Virginia v. Black, that the Court directly applied the exception to reject a First Amendment claim. (51)
The category of speech known as "threats" is founded on common sense. (52) Everyone has some intuitive sense of what a threat is, and it should come as no surprise that the lower courts have worked out an abstract definition that has a fair measure of coherence. In the discussion that follows, I first set out the prevailing doctrines governing the threats exception and then sketch the facts of a number of real cases. Forming the current legal principles into a composite "jury instruction," I invite the reader to be a juror, deciding in each case whether the defendant's statements amount to a threat.
A. A Capsule Restatement of the Law of Threats and the First Amendment (So Far)
Doctrine first. Some aspects of the First Amendment law governing threats are, in the abstract, tolerably well established. For now, I simply list them.
The threats exception exists. Government can punish an expression of the speaker's (53) intention to inflict physical harm on another identified person--the "target"--or on someone close to the target, for such a threat lies outside the protection of the First Amendment. The exception no doubt applies to some threats of serious nonphysical harms ("I'm going to bum down your house!"), but not to threats of public criticism or refusal to trade. (54)
Some statements, literally expressing an intention to inflict serious harm, are unmistakably jokes, or otherwise not meant to be taken seriously, and do not fall within the threats exception.
In some cases where courts have held that a speaker has forfeited First Amendment protection by reason of the threats exception, a statute has prescribed punishment or civil liability only for speakers who act with the actual ("subjective") intention (55) to cause the target to believe that he or she is in danger of harm to be inflicted by the speaker (56)--as opposed to a benign intention to warn ("Watch out for that car!"). Irrespective of such a statute, as a matter of constitutional law, the threats exception to the First Amendment now appears to apply only to a speaker who has intended to threaten. (57)
In addition to the requirement of an intention to intimidate, the threats exception requires that the statement be objectively threatening. It would be an intolerable intrusion on free speech to apply the threats exception to a message just because someone feels threatened by it. The First Amendment requires jurors and judges to make some evaluation of reasonable expectations. The formulas vary. One formula asks whether a reasonable speaker would expect the target to take the statement as a threat of serious harm. An alternative formula asks whether a reasonable target would interpret the statement as such a threat. In theory, either of these formulations is an "objective" standard. In other words, neither definition requires a showing of the speaker's actual expectation, nor does it require a showing that the message actually put the target in fear. (58) Yet courts often do take account of the actual expectations of the speaker, or the target, or both. For instance, the target's actual fear may be seen to illustrate that the message would reasonably be understood to be a threat. In the same vein, a speaker's intent to threaten may also help to prove that the statement should be regarded as threatening.
Finally, speech that otherwise falls within the threats exception gains no First Amendment protection from a showing that the speaker does not intend to carry out the threat, or lacks the capability of doing so. Nor does application of the threats exception require a showing that harm to the target is, or appears to be, imminent.
Later, I shall suggest that the courts clarify the general principles I have just "restated," adding a few more requirements for applying the threats exception--recognizing all the while the limitations on doctrine's effectiveness in controlling decisions.
B. Imagine You Are a Juror--Six Times
In each of the following six cases, please imagine that you are a juror, asked to decide whether a speaker's statement is or is not a threat. Assume, too, that the judge has given your jury this instruction:
A threat is a statement which a reasonable speaker should foresee would be interpreted, by those to whom the speaker communicates the message, to be a serious expression of intent to inflict bodily harm. The speaker need not intend to carry out the threat, but must intend to threaten some person indicated by the message. (59)
Please re-read the instruction after you have read the summary of evidence in each of the following real cases. Then consider what the speaker's statement means: Is it a threat, or not?
1. All for Love (60)
After making a single appearance before U.S. Magistrate Judge Celeste Bremer, Odell Whitfield wrote more than sixty letters to her over a seven-year period. In these letters Whitfield made clear that he desired a sexual relationship with the judge. Some of the letters included poems containing explicit sexual references, and one of the letters included two photocopied pages from a romance novel that described a forcible sexual encounter. Whitfield had phoned Judge Bremer's home, and on one occasion he traveled to Des Moines in an attempt to meet with her. The judge knew that Whitfield had previously committed a felony and at least once had carried a gun. He was charged under Iowa law with ten counts of harassment, but the county attorney and Whitfield agreed that if Whitfield did not write or contact Judge Bremer for a year, the state charges would be dismissed. Whitfield complied, and the charges were dismissed. Seven months later, Whitfield mailed a packet of letters to Judge Bremer. In one of them he said his love for Judge Bremer was "driving [him] insane" and that it was difficult to love someone "you can't see or touch or hug and kiss when you want to." (61) He also wrote, "You are my most desired goal, and I will Stop [sic] at nothing to reach you." (62) On the basis of these last letters, Whitfield was prosecuted for the federal crime of mailing a threat to a federal judge. Judge Bremer testified that she considered the letters to threaten a sexual assault.
Please review the model injury instruction. Did Whitfield's last set of letters constitute a threat?
2. Trash the President (63)
Zebuel Hanna prepared, photocopied, and distributed four documents containing various combinations of handwritten words, drawings, photographs, and passages from the Bible. Hanna mailed or hand-delivered the letters to neighbors, businesses, and state and local government offices throughout the United States. Although the documents referred to President Bill Clinton, Hanna did not send any of them to the President, the President's aides, or any federal agency. The documents were:
* A paper containing the words "KILL THE BEAST" (64) in handwritten capitals at the top of the page, along with some handwritten comments and two stick-figure drawings representing the President and Hillary Rodham Clinton. Above the President figure was the number 666 (associated by some people with the Devil) and the name "willie jeffer jackal." (65)
* A paper containing a dozen handwritten comments, several cut-out passages from the Bible, and a photograph of President Clinton at Justice Ruth Bader Ginsburg's sweating-in. Below the photograph was a handwritten comment: "17 little Angels Murdered by Beast Blythe and his 666 Molesters." (66) At the bottom of the page, the paper read: "William Jefferson Blythe 3rd, Mr. buzzard's feast, WANTED For MURDER, DEAD OR ALIVE." (67)
* A paper containing the words "WANTED FOR MURDER" (68) in large bold capitals, taking up about a third of the page. An arrow connected the words "Beast Blythe" to the President's picture. Below the picture was printed: "WILLIAM JEFFERSON BLYTHE 3rd, alias Willie the Clinton, alias Rev. HIV 3rd AND His 666 MOLESTERS, DEAD OR ALIVE." (69)
* A paper containing these words in handwriting along the top: "All filth herein will be hanged by the feet and their throat slit." (70) Below was a list of thirty names, including "sweet willie Blythe," (71) and other handwritten comments. The words were written on the face of a formal court document, entitled "Petition for Court Ordered Involuntary Admission" (evidently filed previously to commit Hanna for psychiatric evaluation).
Hanna was prosecuted for the federal crime of making threats against the President.
Please review the model injury instruction. Did Hanna's documents constitute a threat?
3. Echoes of Columbine (72)
The shooting massacre at Columbine High School in Jefferson County, Colorado happened in April 1999. In March 2001, at Mount Baker Middle School in King County, Washington, eighth-grade student K.J. was sitting next to Martin Kilborn in their advanced reading class; it was the last day of the class. The two started talking about books they had been reading. Kilborn had with him a book showing military men and guns on the cover. He turned to K.J., and, half smiling, said to her, "I'm going to bring a gun to school tomorrow and shoot everyone and start with you." (73) Then he began giggling, and said, "[M]aybe not you first." K.J. was surprised; she said, "[Y]eah, right," and turned away. (74) She told a friend about Kilborn's statement, but did not tell the teacher. She thought Kilborn might be joking--they had been joking together in their previous class--but she was not sure. She went home, and the more she thought about the incident, the more she became afraid Kilborn was serious. She did not know Kilborn to be a scary person; he had never done anything like this before. K.J. told her parents about the incident, and her mother phoned 911.
Kilborn was arrested and charged under state law with "felony harassment," in that he knowingly threatened to cause bodily injury to K.J. In court, K.J. testified that she did not feel scared when Kilborn spoke--just surprised. They had known each other two years and had never had a fight or disagreement. Kilborn always treated her nicely. He would make jokes on occasion, and the other students, including K.J., laughed at them. She said, "[H]e was acting kind of like he was joking, but I didn't know if he was joking or not." (75) She added that, because a school rule prohibited bringing a gun to school--or even talking about bringing a gun to school--she thought "he must have been serious." (76) Kilborn testified that he was only joking.
Please review the model injury instruction. Did Kilborn's statement constitute a threat?
4. The Purloined Letter (77)
J.M. (male) and K.G. (female) were students at Northwood Junior High School in Arkansas. They had been "going together" (seeing each other mostly at school and church) in their seventh-grade year, repeatedly "breaking up" and getting back together. At the end of that year, though, K.G. definitively told J.M. that she was breaking up with him because she was interested in another boy. Angry and frustrated, J.M. drafted "two violent, misogynistic, and obscenity laden rants" (78) that expressed his desire to molest, rape, and murder K.G.J.M. previously had adopted the persona of a "tough guy," once implausibly telling K.G. that he was a member of the Bloods gang. He testified that, in response to the breakup with K.G., he was trying to write a rap lyric similar to those of Eminem and other tough-guy rap celebrities, but he found that his words would not fit any particular beat. Ultimately, he rewrote his words as letters, signing them both. He left the letters in his room at home, where he had written them.
About a month before the eighth-grade year was to begin, a friend, D.M., accidentally discovered one of the letters in J.M.'s room. Before D.M. could read the letter, J.M. snatched it from his hand. D.M. asked to see the letter, and J.M. showed it to him, but when D.M. asked for a copy, J.M. refused. D.M. apparently told K.G. about the letter, and she discussed it with J.M. in several telephone conversations. During these talks, J.M. did not threaten K.G. Eventually, J.M. admitted to her that he had written the letter and that it contained statements about killing her. In one of the conversations, K.G. asked J.M. if she could read the "songs" he had written, and J.M. refused. K.G. then enlisted D.M. to get the letter for her. D.M. spent a night at J.M.'s house, stole the letter without J.M.'s knowledge, and gave it to K.G. In gym class, K.G. read the letter in the presence of other students, one of whom told the campus security officer that K.G. had been threatened. The officer went to the gym, where he found K.G. crying. He investigated a bit further and reported the incident to the school administrators.
The local prosecutors declined to treat the case as a criminal matter. However, Northwood's principal recommended that J.M. be suspended for the rest of the school year. On the appeal of J.M.'s parents, the school district's director of student services recommended a one-semester suspension, during which J.M. could attend the district's alternate school. When his parents appealed to the school board, members of the board upbraided them at the hearing for allowing J.M. to listen to rap recordings. The board "expelled" J.M. from both schools for the remainder of his entire eighth-grade year. J.M., through his mother, then sued in federal district court, claiming that the board had violated his First Amendment rights and that he was entitled to reinstatement at Northwood. Meanwhile, K.G. continued to participate in youth group activities with J.M. after she had read his letter. When he apologized for his conduct, the two hugged, and he hugged her mother.
Please review the model injury instruction. Did J.M.'s letter constitute a threat?
5. Reach out and Touch Someone (79)
James Viefhaus and his fiancee formed a two-member organization in Tulsa, called the National Socialist Alliance of Oklahoma, to promote white racial superiority and to advocate the destruction of, among others, "blacks, Jews, homosexuals, and federal law enforcement officials." (80) They maintained a telephone hotline under the listing "Aryan Intelligence Network." One who phoned the hotline would hear an answering machine message in which Viefhaus explained the Alliance's views. On December 8, 1996, one such message stated, in part:
It is time for all white people to realize that the current system of government is beyond repair. Our revolution is not about fixing this system, but to absolutely destroy it, by any means necessary. Only then can we build an Aryan society for our children and grandchildren.... As in the case of the bombing of the Murrah Federal Building [in Oklahoma City, April 1995], the revolutionary understands and accepts no matter how painful that innocent people must be considered expendable if necessary, in order to successfully complete any action.... This is a war ... racial ... holy war. As an added ultimatum to those of you who are still unwilling to pick up a sword, a letter from a high ranking revolutionary commander has been written and received demanding that action be taken against the government by all white warriors by December 15th and if this action is not taken, bombs will be activated in 15 pre-selected major U.S. cities. That means December 15, 1996.... In [other] words, this war is going to start with or without you. (81)
A journalist, who had been covering white supremacy groups and the militia movement, phoned the hotline, heard this message, and called the FBI. On December 13, 1996, FBI agents searched Viefhaus's house. They seized literature espousing hate and violence, Nazi propaganda, a cache of weapons, books on bomb making, chemicals and other materials that could be made into pipe bombs, and a list of facilities in the Tulsa area occupied by Jewish, Muslim, and Native American groups, as well as federal agencies. Viefhaus was indicted on several counts, including the use of a telephone to transmit a bomb threat. He moved to dismiss that count on the ground that the phone message did not represent a "true threat" and was protected speech.
Please review the model injury instruction. Did Viefhaus's hotline message constitute a threat?
6. The Silver Bullets (82)
Kevan Fulmer complained to the Office of the United States Trustee that his brother and his former father-in-law had failed to disclose assets in bankruptcy and had committed pension fraud and income tax fraud. The complaint was referred to Richard Egan, an FBI agent. When Egan met with Fulmer, Fulmer repeated his charges in general terms, calling his brother and the former father-in-law "vicious" people who had "used the courts to keep him away from his family." (83) Fulmer kept steering discussion to his strained relationship with his family. Egan described Fulmer's manner as "polite," "articulate," and "tense." (84) For three months, Fulmer contacted Egan every seven to ten days, delivered documents to Egan's office, and stopped by to ask about the investigation. Fulmer sent letters and faxes to Egan and left messages on Egan's telephone answering machine. All the while, Fulmer continued to talk about his poor relationship with his family. Egan interviewed the two men whom Fulmer had implicated and reviewed documents relating to the bankruptcy. He then consulted with an Assistant U.S. Attorney. The U.S. Attorney's office told Egan that there was insufficient evidence to justify prosecution, and Egan called Fulmer to pass on news of the decision. Fulmer protested, said "goodbye," and hung up the phone. Three months later, Fulmer left the following voicemail message at Egan's office:
Hi, Dick, Kevan Fulmer. Hope things are well, hope you had an enjoyable Easter and all the other holidays since I've spoken with you last. I want you to look something up. It's known as misprision. Just think of it in terms of misprision of a felony. Hope all is well. The silver bullets are coming. I'll talk to you. Enjoy the intriguing unraveling of what I said to you. Talk to you, Dick. It's been a pleasure. Take care. (85)
Egan later testified that he was "shocked" by the message, which he found "chilling" and "scary," coming just a week after the bombing of the Murrah Federal Building in Oklahoma City. (86) He had never heard the term "silver bullets" before, and he believed it indicated a threat. His supervisor testified that Egan appeared "clearly upset, concerned, [and] agitated." (87) Egan immediately reported the matter to the U.S. Attorney's office, and three days later, Fulmer was indicted for threatening a federal agent. At his trial, Fulmer presented two witnesses. First, a lawyer and former federal investigator testified that he had heard Fulmer use the term "silver bullets" to describe "a clear-cut simple violation of law." (88) He said Fulmer had used the term to describe specific evidence, including an $8200 check from a bankruptcy estate that never reached its intended recipient. Second, a man who had known Fulmer for more than twenty years testified that he had heard Fulmer use the term "silver bullets" to mean "information that he was going to provide to banks proving the illegality" of some of his brother's transactions. (89)
Please review the model injury instruction. Did Fulmer's phone message constitute a threat?
C. Circumstances Alter Cases--and Categories
You will have noticed that the sample jury instruction, although typical, is not exactly self-applying. I have offered the six sample cases to highlight some of the difficulty in deciding whether a statement deserves to be called a threat, and thus deprived of First Amendment protection. The difficulty plagues both jurors and judges, because the existence, or not, of a threat is at once a question about what happened and a question of constitutional fact. In both of those inquiries, there is first the matter of deciding what words the speaker used (90) and then an evaluative determination of whether the words, taken in context, (91) carry the meaning of a threat of serious harm....
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