Is Speech A Threat?

by Chris Bodenner

In all the debate over protesters bringing guns to Obama rallies, I'm surprised I haven't heard anyone talk about Title 18871, the federal law against threatening the president. It reads:

Whoever knowingly and willfully deposits for conveyance in the mail [any] document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States [...] or knowingly and willfully otherwise makes any such threat against the President [...] shall be fined under this title or imprisoned not more than five years, or both.

Gun-loving Republicans and liberty-loving libertarians have framed the issue as simple speech, which I sympathize with. But a loaded gun is different than simple speech, because it carries a much greater potential for deadly violence (especially when that gun is a semi-automatic assault rifle). So how is the simple act of talking about killing the president - as distinguished from a material plot to do so - that different from guns at rallies?

I'm not suggesting that everyone who brings a legal firearm to a rally wants to harm Obama; the vast majority of them are patriots who just want to make a political statement. However, what is more dangerous to the president: a gun-toting individual who may or may not wish harm, or an individual with a "Death To Obama" sign who may or may not intend harm? The Secret Service is obliged to monitor both situations, thus taking up valuable resources. And of course the sign-carrier is far more detestable than the gun-carrier. But should the sign be illegal?

The sign-carrier in question was merely detained, but many people have been charged under Title 18871. Nathan Wine was recently arrested for forwarding an email ranting about Obama's death. Vikram Buddhi is still in prison for making threats against Bush posted in a chat room opposing the Iraq War. A few more examples are here. Each case if different, and the legal distinctions between joking, not joking, threatening, and threatening with intent are often difficult to determine. Eugene Volokh, a law professor, wrote a helpful post on the subject back in 2005:

A brief First Amendment analysis: Joking about shooting the President certainly isn't a crime as such; threatening to shoot the President is. Threats (whether against the President or not) are indeed constitutionally unprotected, but to be a punishable threats, a statement must at least be understood by a reasonable listener as a true threat, rather than just hyperbole (or humor). Here's an excerpt from the leading case, Watts v. United States (1969):

[D]uring a public rally on the Washington Monument grounds [in 1966, t]he crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Petitioner, who himself was 18 years old, entered into the discussion after one member of the group suggested that the young people present should get more education before expressing their views.

[P]etitioner responded: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” “They are not going to make me kill my black brothers.” On the basis of this statement, the jury found that petitioner had committed a felony by knowingly and willfully threatening the President....

We do not believe that the kind of political hyperbole indulged in by petitioner fits within [the term "threat"].... The language of the political arena ... is often vituperative, abusive, and inexact. [Watts'] only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise....

[W]hile the Secret Service does need to investigate all such statements, out of an abundance of caution, the speakers can't be prosecuted given the context. The speakers may also have another defense: Virginia v. Black (2003) also held that a statement can't be a punishable threat unless it's made "with the intent of placing the victim in fear of bodily harm or death." Thus, following Black, a statement is a punishable threat only if a reasonable listener would understand it as a threat of attack and the speaker intended that the listener get that impression.

Volokh also raises another example of speech that is deemed dangerous enough to be illegal: talking about bombs in airports. I'm curious where libertarians stand on that issue as well.