Posted by Eugene Volokh:
Jokes About Killing the President:
[1]Drudge reports:
Government officials are reviewing a skit which aired on [Air
America] Monday evening . . . .
The announcer: "A spoiled child is telling us our Social Security
isn't safe anymore, so he is going to fix it for us. Well, here's
your answer, you ungrateful whelp: [audio sound of 4 gunshots being
fired.] Just try it, you little bastard. [audio of gun being
cocked]."
The audio production at the center of the controversy aired during
opening minutes of The Randi Rhodes Show.
"What is with all the killing?" Rhodes said, laughing, after the
clip aired.
"Even joking about shooting the president is a crime, let alone
doing it on national radio . . . we are taking this very
seriously," a government source explained. . . .
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, [2]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....
My sense is that the same applies here; and while 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: [3]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. Before Black, there had been a lot of debate about whether
such an intention is required, or whether negligence on the speaker's
part is enough. (Under the negligence test, it's enough that a
reasonable speaker would have recognized that a reasonable listener
would see the statement as threatening, even if that wasn't the
speaker's purpose. This is something of an oversimplification of the
lower court caselaw, but it's close enough for our purposes, I think.)
Oddly enough, the Supreme Court didn't discuss this debate, or explain
why it was taking one side of it. Nonetheless, the Court did announce
the likely-understanding-plus-intent requirement, and a plurality
later kept stressing the speaker's intent as an important part of the
analysis. So I think the Air America speakers are probably protected
from legal punishment on those grounds, too (though of course this
assumes that the speakers weren't intending to put the President or
the Secret Service in fear, and that reasonable listeners would indeed
understand the statement as a joke).
This may leave some people with the question: What about all those
signs in airports saying that even joking about bombs is a crime? I
can't tell you for sure whether, following Black, someone can be
prosecuted for his joke when (1) he doesn't intend to threaten anyone
with the joke but (2) the joke is understandably interpreted as
possibly serious. Perhaps courts would draw some distinction based on
the joke's likely lack of political content, and the joke's
potentially highly disruptive effects (the area may have to be closed
down while the potentially bomb-filled luggage is isolated and then
destroyed, and so on). But the speaker would have a decent defense
based on Black, I think. And in any event, the Air America statement
-- a statement said about the President in a political context --
would probably be protected by Watts, Black, or both.
References
1. http://www.drudgereport.com/mattabt.htm
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=394&invol=705
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=01-1107
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