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Threats and the First Amendment

By on Sep 3, 2013 | 0 comments



Last time I wrote about the evolution of the Fifth Amendment, I talked about the U.S. Supreme Court case Salinas v. Texas. I wrote about the Salinas case because the right to silence is near and dear to my heart, and from interacting with readers of this blog, I know it’s relevant to their interests too. But case law involving constitutional issues are important because constitutional protections are the biggest shield from unlawful government activity. What does that mean? I’ll explain

Almost all constitutional clauses and constitutional amendments either require the government to do something or prohibit the government from doing something. The Fifth Amendment doesn’t technically give someone a right to silence. Rather, it prohibits the government from compelling someone to speak against his or her own interest. Two sides of the same coin perhaps, but the distinction is relevant when addressing whether a government action is unlawful. If a government action is unconstitutional, and thus unlawful, it is void. This also means if a prosecution was based on something that is constitutionally protected, that prosecution and any resultant conviction is also void.

Cases involving constitutional issues happen all the time. Did the police compel an interrogation? Was a backpack searched unlawfully? Was a soldier quartered in a private citizen’s home? However, cases that represent an evolution of constitutional case law are relatively rare, and followed closely by attorneys. One such case just came out, involving the First Amendment, and it’s the subject of this week’s post.

The First Amendment has a lot of fun clauses. Think freedom of the press and freedom to assemble and freedom to worship. The subject of today’s case deals with the portion of the First Amendment promising the right to free speech.

As a side point, the First Amendment is a prohibition on the government infringing on someone’s right to communicate. The right to free speech doesn’t mean that you and I have a constitutional right to post on someone’s private message board, give speeches in someone’s restaurant, and put up signs on someone’s house. This is why the First Amendment doesn’t prevent me from moderating the comments on blog posts.

State v. Locke deals with online communication where the government actually criminalizes someone’s online speech. Since you’re reading this on a website, the ruling could impact you.

The Limits of the First Amendment

But before we delve into Locke, let’s look at what speech is outside the protections of the First Amendment. While the rules are fairly simple, there are more exceptions than many realize. The following are all classes of speech that courts have determined do not have First Amendment protection, and are types of speech that can result in civil or criminal penalties:

  • Fighting words: Words that try to incite a fight or a riot are not protected speech.
  • Words that put others at risk: Somewhat related to the first exception, these are statements that could cause harm to another. Yelling “Fire!” in a crowded theater falls under this category.
  • Obscenity: It is not protected if the subject matter is so sexually prurient as to offend the essence of the decency of society. If you think this is a vague definition, give yourself a cookie. What’s considered “obscenity” is a moving target at best, and is a direct reflection of the evolving social mores. Justice Potter Stewart famously declared about obscenity, “I know it when I see it.” Since Justice Stewart died in 1981 that’s not too helpful for the rest of us.
  • False Statements: This falls under two categories: Defamatory statements and impeding investigations.

The first category is slander and libel, i.e. making untrue statements about someone to disparage their reputation. Saying “Person X molests children” (if untrue) has no First Amendment protections and could lead to the speaker being sued.

The second category, which actually comes up frequently, involves making a false statement to law enforcement while they’re investigating a crime. This would apply when a mother tells the police that her son has gone to Texas when he’s really hiding in the basement. But it also applies even when the speaker is the very person that the police are investigating. In other words, you can be prosecuted for making a false statement if you give a fake name to an investigating officer. Hence why I recommend staying silent instead of talking to the cops.

  • Threats: Today’s case is about this exception. More below. The short version: a “true threat” is not protected by the First Amendment and subjects the speaker to prosecution.

Despite these limitations, the First Amendment still leaves vast amount of topics available to speak or write about. You cannot generally be prosecuted for political speech. You cannot generally be prosecuted for religious speech. You cannot generally be prosecuted for annoying, offensive, even hateful speech. The Constitution accepts robust discourse, even if you or I would consider a speakers’ content ignorant or derogatory or just plain wrong.

The case I’m talking about today considers the case deals when political speech crosses the line into a “true threat” and thereby loses First Amendment protection. Since the case was based on internet communication, it is very relevant for modern times.

State v. Locke

In State v. Locke, Mr. Locke contacted then-Governor Gregoire via her website’s “Contact Governor Gregoire” function. He emailed her twice, using his real name and a fake address. (Mr. Locke said he lived in the city “Gregoiremustdie.”)

In his first email Mr. Locke wished serious ill to Governor Gregoire’s family although he didn’t say he would personally deliver mischief to them. In a second email he used coarse language and said Governor Gregoire “should be burned at the stake like any heretic.”

After sending those emails, Mr. Locke visited an online form on the website intended to be used to “Invite [the Governor] to an event.” On this form Mr. Locke identified himself by name, gave his phone number, titled the event “Gregoire Must Die” and said the event would be a public execution held at the Governor’s Mansion.

An executive assistant discovered the emails and event invitation the next day. The assistant was especially concerned because this was three weeks after U.S. Representative Gabby Giffords was shot in Arizona. The assistant notified the Executive Protection Unit (EPU) of the Washington State Patrol.

The EPU called the phone number entered on the form and spoke to a man who identified himself as Mr. Locke. The EPU then went to Mr. Locke’s house for a discussion. He was taken to a Washington State Patrol office, where he admitted that he sent the emails and made the event request.

Mr. Locke reported he was upset with Governor Gregoire because as Attorney General of Washington, Gregoire’s office had failed to follow-up on his former employer’s withholdings from his final paycheck, due to a disability. Mr. Locke was reminded of the incident while experiencing back pain en route to physical therapy and wanted to give her “a piece of his mind.” Mr. Locke apologized for the communications and said the decision to send them was “the worst judgment.”

Mr. Locke was then charged with one count of making Threats against Governor or Family, a Class C felony. He was convicted at trial and sentenced to one year of confinement. Mr. Locke appealed, arguing among other things that the emails and event invitation were protected by the First Amendment, particularly because they were political speech.

Two of three appellate judges disagreed, holding that the evidence was sufficient to convict Mr. Locke of the crime. The Court focused on the legal definition of “true threat” which was defined as “a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted…as a serious expression of intention to inflict bodily harm upon or to take the life of another person.” The Court went on to note that a true threat is a serious threat, not one said in idle talk or political speech. The Court explicitly held that hyperbolic speech was not a true threat. But the Court also noted that the context of the speech could change whether words were a true threat or not, regardless of their literal meaning.

The Court then reviewed the context of the speech itself. The Court held the first email, that wished ill on the Governor’s family, was crude but not a true threat.

The Court said the second email increased the vehemence and also included a personalized wish that Governor Gregoire die by being burned at the stake. The Court noted this second email, taken in isolation was skirting but possibly not within the “true threat” zone. The Court noted that the phrasing “should be burned” denoted a passive voice, rather than actively saying the speaker would immolate someone. But, the Court noted, the tenor became more concerning when combined with the first email.

The final missive, the invitation of Governor Gregoire to her own execution, was enough to escalate the entire encounter into a true threat. The Court noted the specifics of the event, combined with the recent Representative Gifford shooting and the way law enforcement reacted, would lead a reasonable person to consider the communications collectively an actual threat. In the end, two of the three judges on the panel voted to affirm Mr. Locke’s conviction.

This decision received a blistering dissent from the third judge on the appellate panel. Judge Johanson argued that collectively Mr. Locke’s communications were not a true threat, and because of their political nature, the protections of the First Amendment meant Mr. Locke’s conviction should be reversed.

Judge Johanson first noted that the “threats” were so outlandish that no reasonable person could be expected to experience fear as a result. He also noted that being burned at the stake was historically political and that no one could reasonably fear actually being tied to a log in the ground and being burned alive.

The judge also noted that the event invitation, taken as a whole, could not equal a true threat. Judge Johanson observed the website had dropdown menus regarding Governor Gregoire’s role in an event, and that checking them at random did not equate to a serious plan to harm. He went to say that the invitation itself merely created the event but did not actually say Mr. Locke would be committing or participating in the execution.

Judge Johanson expressed a deep reverence for political speech, even if it was “vehement, caustic, and…unpleasantly sharp attacks on government and public officials.” He noted that political speech in particular received even higher protection and scrutiny than other forms of speech, among the highest class of protected speech in the legal system. Judge Johanson would have reversed the conviction.

Next Steps

A dissenting opinion from a three-judge Court of Appeals case is relatively rare. A 2-1 decision involving issues this fundamental is even more unusual. Almost certainly this case will head to the Washington Supreme Court for review. It may even go to the United States Supreme Court. I’ll keep you abreast of any future developments.

For what it’s worth, I agree with the dissent. Political speech can be coarse. While the majority said political speech wasn’t the main aim of Mr. Locke (he had a private grievance) the court also held his first email was political, but that the rest wasn’t. This seemed incongruous.

In addition, the majority made the point that law enforcement’s response justified perceiving the threats as a true threat rather than hyperbolic speech. The dissent pointed out that the response of law enforcement had never been a factor in determining whether speech is protected. That’s certainly true. But it also seems like a very circular argument. “We know he committed a criminal act because police responded.” “Why did police respond? Because he committed a criminal act.”

Would I like to get emails like Locke’s? Certainly not. But, strong language is not the same as the words being criminal. Furthermore, I’m not a political figure. I would assume if I ever ran for political office, I would receive unpleasant letters. I probably wouldn’t like them then, but that’s part of the American political process. Our Constitution and representative democracy means ordinary citizens gets to disagree with elected leaders, even caustically.

But we can see from Mr. Locke’s case there are limits. The real question is how this ruling affects regular Washington citizens.

I imagine most people don’t go around threatening to burn elected leaders at the stake. But the tenor of internet communication can indeed be violent. Examples are everywhere of people cloaked in the anonymity of the internet making serious threats to human beings. And many of the targets of these threats are not political figures, which means their aggressors’ speech is less protected.

As State v. Locke has shown, police may respond to online threats. Furthermore, individuals can be prosecuted for making these statements. If a client of mine ever asked if they should threaten to kill someone via the internet, even in an “obvious” joking or over the top manner I would say “Um, no.” Mr. Locke’s criminal conviction may or may not be vacated. Ether way Mr. Locked suffered some serious financial and social harm for the criminal charge. Even if Mr. Locke walks away a free man, his language skirted the boundaries. Anyone who makes vitriolic threats on the internet risks similar harm.

It’s an evolving area of the law to be sure. I hope people play it safe rather than inviting visits from the police. But if you or someone you know has been charged with a crime, feel free to give me a call. We’ll figure it out.

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The facts and circumstances of your case may differ from the matters in which results and testimonials have been provided. Every case is different, and each client’s case must be evaluated and handled on its own merits.