Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law G
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BYU Law Review Volume 2002 | Issue 4 Article 2 11-1-2002 Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law G. Robert Blakey Brian J. Murray Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Constitutional Law Commons, Criminal Law Commons, and the Jurisprudence Commons Recommended Citation G. Robert Blakey and Brian J. Murray, Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law, 2002 BYU L. Rev. 829 (2002). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2002/iss4/2 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. BLAKEY ENTIRE FIN 11/15/2002 7:39 PM Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law G. Robert Blakey∗ Brian J. Murray∗∗ “[A] true threat is not protected by the First Amendment.”1 ∗ William J. and Dorothy O’Neill Professor of Law, Notre Dame Law School; A.B. 1957, University of Notre Dame; J.D. 1960, Notre Dame Law School. ∗∗ Law Clerk to the Honorable Diarmuid F. O’Scannlain, United States Court of Appeals for the Ninth Circuit (2001–02); B.S. 1997, University of Notre Dame; J.D. 2000, Notre Dame Law School. These materials are the product of a “Socratic dialogue” between Murray and Blakey on the criminal law and free speech begun when Murray was a student in Blakey’s criminal law class in 1997, continued while Murray was a student at the Notre Dame Law School’s London Program in 1998–99, maintained while Blakey visited at the Michigan Law School during Winter Term 2000, and carried forward while Murray was a law clerk to Judge O’Scannlain. The discussion resulted in Murray’s publication of Protesters, Extortion, and Coercion: Preventing RICO From Chilling First Amendment Freedoms, 75 NOTRE DAME L. REV. 691 (1999). The Note was awarded the Arthur Abel Memorial Competition Writing Award at the Notre Dame Law School. Blakey is not in agreement with all that appears in the Note. See, e.g., id. at 728 n.169. These materials reflect where that discussion is now; a general consensus is not obtained, nor is the discussion at an end. The authors express their appreciation to John Baker, Gerard Bradley, Craig Bradley, Clarke Forsythe, John Finnis, Rick Garnett, John Garvey, Henry Monaghan, Steve Smith, and Walter Weber for their insightful comments on earlier drafts of these materials. Needless to say, the views expressed in these materials are solely those of the authors. In particular, nothing in these materials should be interpreted as reflecting the views of Judge O’Scannlain. Murray did not work on this case during his year clerking for Judge O’Scannlain, nor did he discuss the case with him, and nothing contained herein was derived from Murray’s experience working on the Ninth Circuit. Besides, no one who knows Judge O’Scannlain doubts his ability to express his own views in his own way. The authors also express their appreciation to Roger F. Jacobs, Director of the Kresge Law Library and his capable staff, in particular Patti Ogden and Dwight King, Research Librarians, who found the unfindable with alacrity and a sense of humor, and Jeremy Gayed and Eric Tamashasky for able research assistance. Finally, Blakey expresses his appreciation to his daughters, Katherine, Margaret, and, in particular, Marie, who took care of their mother while their father finished working on these materials. These materials are current, in so far as practicable, through June 30, 2002. 1. United States v. Whiffen, 121 F.3d 18, 22 (1st Cir. 1997) (citing United States v. Fulmer, 108 F.3d 1486, 1492–93 (1st Cir. 1997)); accord United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990). 829 BLAKEY ENTIRE FIN 11/15/2002 7:39 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2002 “To the extent that the [lower] court’s judgment rests on the ground that . citizens were ‘intimidated’ by ‘threats’ of ‘social ostracism, vilification, and traduction,’ it is flatly inconsistent with the First Amendment.”2 If political discourse is to rally public opinion and challenge conventional thinking, it cannot be subdued. Nor may we saddle political speakers with implications their words do not literally convey but are later “discovered” by judges and juries with the benefit of hindsight and by reference to facts over which the speaker has no control.3 Violence is not a protected value. Nor is a true threat of violence with intent to intimidate. [Defendant] may have been staking out a position for debate when it merely advocated violence . or applauded it. Likewise, when it created . [an Internet Website] in the abstract, because the First Amendment does not preclude calling people demeaning or inflammatory names, or threatening social ostracism or vilification to advocate a political position. [But the defendant’s conduct in publishing “wanted posters” like those that proceeded the murders of doctors in the recent past and a “score card” of the murders of doctors on its Website] was not staking out a position of debate but of a threatened demise.4 “The concept of individual responsibility for wrongdoing is sacrosanct in American society, and [it] applies equally to all . .”5 2. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 921 (1982); see also id. at 916 (“No federal rule of law restricts a State from imposing tort liability for business losses that are caused by violence and by threats of violence. When such conduct occurs in the context of constitutionally protected activity, however, ‘precision of regulation’ is demanded.”). 3. Planned Parenthood of the Columbia/Willamette Inc. v. Am. Coalition of Life Activists, 244 F.3d 1007, 1019 (9th Cir. 2001), aff’d in part, vacated in part, remanded by 290 F.3d 1058 (9th Cir. 2002). The panel’s opinion in American Coalition hardly represented an innovation. See, e.g., People v. Jones, 28 N.W. 839, 840 (Mich. 1886) (“It is not the policy of the law to punish those unsuccessful threats which it is not presumed would terrify ordinary persons excessively; and there is so much opportunity for magnifying or misunderstanding undefined menaces that probably as much mischief would be caused by letting them be prosecuted as by refraining from it.”). It is now an unfulfilled promise. 4. Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 290 F.3d 1058, 1086 (9th Cir. 2002). 5. USA Patriot Act of 2001, Pub. L. No. 107-56, § 102(a)(3), 115 Stat. 272, 276 (2001). 830 BLAKEY ENTIRE FIN 11/15/2002 7:39 PM 829] Threats, Free Speech, and Jurisprudence TABLE OF CONTENTS I.INTRODUCTION ..................................................................... 833 II. THE AMERICAN COALITION LITIGATION ............................. 843 A. The District Court Opinion......................................... 843 B. The Ninth Circuit Panel Opinion ................................ 850 C. The Ninth Circuit En Banc Opinion............................ 858 D. Analysis ...................................................................... 874 III. THE FIRST AMENDMENT: THEORY AND PRACTICE .............. 891 A. Creative Interpretation: Rationales for the Freedom of Speech...................................................................... 892 B. The First Amendment, the Marketplace, and Content Discrimination .......................................................... 915 IV. “TRUE THREATS” AND THE SUPREME COURT ..................... 921 A. The Decisions ............................................................. 923 B. Analysis....................................................................... 932 V. THE CIRCUITS ON “TRUE THREATS”.................................... 937 A. Construing Around the First Amendment: The Predominant Approach ............................................. 940 1. The objective, speaker-based test ........................... 940 a. The First Circuit............................................... 940 b. The Third Circuit ............................................ 949 c. The Seventh Circuit.......................................... 954 d. The Ninth Circuit ............................................ 966 2. The objective, hearer-based test............................. 970 a. The Fourth Circuit........................................... 970 b. The Eighth Circuit........................................... 972 c. The Tenth Circuit ............................................ 979 3. The objective, viewpoint-neutral approach ............. 982 a. The Fifth Circuit .............................................. 982 b. The Eleventh Circuit........................................ 990 c. The District of Columbia Circuit ...................... 997 d. The Federal Circuit........................................ 1000 B. An Independent First Amendment Standard for Threats: The Second Circuit (and the Sixth?) ........... 1003 1. The Second Circuit ............................................. 1003 831 BLAKEY ENTIRE FIN 11/15/2002 7:39 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2002 2. The Sixth Circuit................................................. 1007 VI. BASIC PRINCIPLES OF FEDERAL CRIMINAL LAW................. 1010 VII. DEALING WITH TRUE THREATS: A PROPOSAL .................. 1051 A. Roles of Court and Fact Finder.................................. 1052 1. Independent decision maker................................ 1052 2. The gatekeeper