First Amendment - True Threats - Sixth Circuit Holds That Subjective Intent Is Not Required by the First Amendment When Prosecuting Criminal Threats

Harvard Law Review, February 2013 | Go to article overview

First Amendment - True Threats - Sixth Circuit Holds That Subjective Intent Is Not Required by the First Amendment When Prosecuting Criminal Threats


In its 2003 decision Virginia v. Black, (1) the Supreme Court reiterated that a "true threat" is not protected by the First Amendment and is subject to prosecution. (2) Despite the Black Court 's attempt to clarify when speech constitutes a "true threat," (3) lower courts have disagreed about the standard constitutionally required to differentiate true threats from protected speech. (4) Recently, in United States v. Jeffries, (5) the Sixth Circuit held that an intentional communication is not protected by the First Amendment if a "reasonable observer would construe [the speech] as a true threat to another" (6)--regardless of whether the speaker intended the speech to threaten, and regardless of whether the speaker intended that the threatened party receive the speech. (7) In its decision to adopt this objective "reasonable observer" standard, the Sixth Circuit unwisely rejected a "subjective intent" approach that more closely accords with the plain language and balancing of principles articulated by the Supreme Court in Black.

During the summer of 2010, Franklin Delano Jeffries II and his ex-wife were involved in a custody dispute over their daughter. (8) Several days prior to a July 14, 2010, hearing before Knox County Chancellor Michael W. Moyers, Jeffries posted a music video, in which he performed a song that he had written titled "Daughter's Love," on YouTube. (9) The song addressed the importance of fathers and daughters' spending time together and included complaints about his ex-wife, lawyers, and the legal system. (10) "Daughter's Love" also referenced Jeffries's upcoming hearing, with such lines as "when I come to court this better be the last time.... 'Cause if I have to kill a judge ... I don't care." (11) He also sang, "I guarantee you, if you don't stop, I'll kill you.... July the 14th is the last time I'm goin' to court." (12) Finally, he directed lyrics at Chancellor Moyers: "[Y]ou don't deserve to be a judge and you don't deserve to live.... I hope I encourage other dads to go out there and put bombs in their goddamn cars." (13)

Jeffries distributed a link to the YouTube video to twenty-nine Facebook users, including a local news station, and also posted a link on his Facebook wall. (14) Jeffries removed the video twenty-five hours after uploading it, but by then his ex-wife's sister had informed Chancellor Moyers about the video. (15) Law enforcement was notified and Jeffries was indicted for violating 18 U.S.C. [section] 875(c), (16) which makes it a federal crime to "transmit[] ... any communication containing any threat ... to injure the person of another." (17)

Jeffries was tried before the United States District Court for the Eastern District of Tennessee. (18) He filed a pretrial motion to dismiss the indictment, arguing that it failed to charge an offense as a matter of law because it did not allege that he transmitted a true threat. (19) The court assessed the true threat doctrine and concluded that the government did not need to prove that Jeffries subjectively intended to "realize a goal" (20) by threatening Chancellor Moyers, only that his statement met an objective standard--namely, that a "'reasonable person [would] consider the statement to be a threat' based on 'the surrounding facts and circumstances.'" (21) The court found that precedent divided this analysis into a two-pronged test, analyzing the content of the statement and the context in which the statement was made. (22) The court then denied Jeffries's motion, finding that the content of his statements could reasonably be interpreted as evincing intent to intimidate Chancellor Moyers, and that the context of the statements, made in a YouTube video forwarded to persons associated with the dispute, made it reasonably foreseeable that Chancellor Moyers would learn of the statements. (23)

Before trial, Jeffries also requested an instruction asking the jury to apply a subjective intent standard in determining if the video constituted a true threat, in addition to the objective standard. …

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