Freedom of Speech and True Threats

By Rothman, Jennifer E. | Harvard Journal of Law & Public Policy, Fall 2001 | Go to article overview

Freedom of Speech and True Threats


Rothman, Jennifer E., Harvard Journal of Law & Public Policy


I. INTRODUCTION

Consider the 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 the clinic and you have heard about the murders of several doctors around the 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 the names and home addresses of doctors who perform abortions. When you look at the website you find your name and address on the list along with strong language saying that you and the others on the list will one day be held accountable for your crimes against humanity. Some of the doctors' names have black lines through them. You recognize these names as people who have been murdered by antiabortion fanatics. Can you successfully sue the creators of the website for threatening you and causing you severe emotional distress, or is this website protected by the 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 the Internet with a newsgroup called "sex stories." You read the posting and find a gruesome and detailed story of the 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 the 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 the boycott including the firing of shots into the house of one boycott violator. The leader of the boycott speaks at the rally and warns boycott violators that "their necks will be broken." You had been considering returning to some of the white-owned stores but are frightened by the leader's words. Should the leader of the boycott be arrested for threatening boycott violators or is his speech protected by the First Amendment? (3)

As a child you grew up watching the Lone Ranger on television. From this show you picked up the phrase "the silver bullets are coming" which signified to you that the Lone Ranger was on his way to save the 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 the 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 the 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 "true 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 the lower courts. The sudden interest in threats has been sparked primarily by the proliferation of widely disseminated Internet speech. (5) In particular, two high-profile cases have shined the spotlight on threats: the so-called Nuremberg File case (6) and the Jake Baker case, (7) both of which I used in the above hypotheticals. Despite this recent interest, the three major hornbooks and treatises on the First Amendment and the Constitution still do not have an index listing for true threats. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Freedom of Speech and True Threats
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.