When Speech Is Rightly a Crime

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

When it’s a threat of planned violence:

Howard University confirmed it was increasing security on its Washington, D.C., campus following an anonymous death threat posted online on Wednesday night. [...] The FBI confirmed the threat in a statement early Thursday afternoon. “We are aware of the online threat and have made appropriate notifications," the FBI said in a statement to the Washington City Paper. “We urge anyone who has information about the threat to contact the Metropolitan Police Department or the FBI.”

The threat was posted on a forum that appears to be a 4chan board, a photograph of the post has been shared widely on Twitter and Instagram.

Krishnadev covered the anonymous threat directed at the Mizzou campus yesterday, and since then there’s been a second arrest. For some context on these stories, here’s a review of the case law on “true threats”:

The First Amendment guarantees every person the right of free speech, but that right is not absolute

Some words “by their very utterance” cause injury or incite an immediate breach of peace, and they do not receive constitutional protection.[2] Among the category of unprotected speech are “true threats,” statements in which a speaker expresses a “serious” intent “to commit an act of unlawful violence to a particular individual or group of individuals.”[3] Even though statutes that punish unprotected speech have “never been thought to raise any Constitutional problem”[4] and Congress has made it a crime to use interstate communications facilities to make “threats,” the law governing this subject has been unclear.[5]

The federal circuit courts of appeals disagree over the correct mens rea requirement necessary to prove a violation of the federal threat statute. A majority of those courts require the government to prove only that the defendant knowingly made a statement that “was not the result of mistake, duress, or coercion” and that a “reasonable person” would regard as threatening.[6] Other courts have required a different, stricter standard—one that requires the government to prove not only that the defendant knowingly made a statement reasonably perceived as threatening, but also that he subjectively intended for his communication to be threatening.[7]

Update: A letter sent by the Foundation of Individual Rights in Education (FIRE), Greg Lukianoff’s group, to Mizzou officials today contains a passage especially relevant to this history:

[T]he University of Missouri itself is at the center of one of the [U.S. Supreme] Court’s most famous decisions applying this principle [that merely offensive or hurtful speech is protected] specifically to the public university campus. In Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), the Court held that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” That case memorably upheld the rights of journalism student Barbara Papish to distribute a newspaper featuring a cartoon depicting police officers raping the Statue of Liberty and the Goddess of Justice, as well as an article titled “Motherfucker Acquitted.”

Flag desecration, funeral protests, and cartoons of the kind distributed by Papish are without question considered “hateful” or “hurtful” by some, even by many. With passions running high at Mizzou in the midst of important discussions and debates on the topics of race, equality, and justice, it is quite likely, if not inevitable, that some exchanges were and will be considered hateful or hurtful. It is crucial that students be able to carry out such debates without fear that giving offense will result in being reported to the police and referred for discipline by the university. Indeed, the expectation that the right of students to fully express themselves on the Mizzou campus will be respected is part of what has made the demonstrations of the last few weeks possible.