Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law

Article excerpt

"[A] true threat is not pretected by the first Amendment."1 IMAGE FORMULA5

"To the extent that the [lower] court's judgment rests on the ground that ... citizens were 'intimidated' by 'threats' of `social ostracism, vilification, and traduction,' it is flatly inconsistent with the First Amendment."2

If political discourse is to rally public opinion and challenge conventional thinking, it cannot be subdued. Nor may we saddle political speakers with implications their words do not literally convey but are later "discovered" by judges and juries with the benefit of hindsight and by reference to facts over which the speaker has no control.3

Violence is not a protected value. Nor is a true threat of violence with intent to intimidate. [Defendant] may have been staking out a position for debate when it merely advocated violence ... or applauded it.... Likewise, when it created ... [an Internet Website] in the abstract, because the First Amendment does not preclude calling people demeaning or inflammatory names, or threatening social ostracism or vilification to advocate a political position. [But the defendant's conduct in publishing "wanted posters" like those that proceeded the murders of doctors in the recent past and a "score card" of the murders of doctors on its Website] was not staking out a position of debate but of a threatened demise.4

"The concept of individual responsibility for wrongdoing is sacrosanct in American society, and [it] applies equally to all ...."5 IMAGE FORMULA8

I. INTRODUCTION

The sun has not set yet, but it is surely twilight for meaningful First Amendment freedoms in the nine western states covered by the Ninth Circuit Court of Appeals. For nearly fourteen months, freedom of speech appeared to be secure in the Ninth Circuit. In a ringing reaffirmation of the First Amendment, a panel of the circuit in Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists6 struck down a ruinous $107 million jury verdict and a wide-ranging and highly restrictive injunction imposed on a group of social and political protesters and all of those who could be connected with them for creating and disseminating various "wanted" posters and using an Internet Web site to feature vividly its opposition to abortion.7 Fully consistent with controlling Ninth Circuit and Supreme Court precedent, the panel found that the First Amendment completely protected the defendants' speech and conduct, and it reversed the damage award and the issuance of the injunction.8 IMAGE FORMULA16

Concluding that the posters and Internet Web site were protected speech, not a "true threat," which is unprotected under the law, the panel made three crucial points. First, the posters and the Internet Web site were pure speech significantly in a public discourse, not direct personal communications or other unprotected conduct.9 Second, the language employed in the posters and the Internet Web site did not contain any explicit threat of present or future harmful conduct.10 Finally, while context may disambiguate language and render it unprotected under the law, that context must substantially relate to the speaker, not be attributed to a speaker based on the speech or conduct of unrelated other persons. In short, context for which a speaker is not legally responsible-that is, he does not authorize, direct, or ratify-cannot limit the speaker's own, personal, constitutional rights.11

But the en banc court rendered the panel's work a nullity, leaving its promise of protection to protesters unfulfilled.12 In a massive opinion (but one hardly characterized by precision of analysis) and over three powerful dissents, the en banc Ninth Circuit reversed the panel opinion by a vote of six to five.13 Strangely, the en IMAGE FORMULA18

banc opinion, authored by Judge Pamela Ann Rymer, although excessively lengthy, does not articulate a rationale for its result; it is, in fact, a "holding" without minor premises between its major premises and its conclusions. …