When The First Amendment Carries The Day
Anything That's of Public Interest?
The U.S. Supreme Court has focused on the common law concept of threat twice. The There was Elonis recently, which it cabined 875 to make it constitutional in its enforcement. The other time was in 1969, when the Court had occasion to review the Presidential threat conviction under 871 of a young anti-Vietnam protestor. This was the Watts case.
Although each was a loss for the government, they were victories for the People. The Court had spoken about threats. This is where the concept of “true threat” started getting traction.
The first of these two cases - Watts - was an unbridled success for civil libertarians. Here are the facts:
It was August 27, 1966, during a public rally on the Washington Monument grounds. The crowd present broke up into small discussion groups and Watts joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Watts, 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.
According to an investigator for the Army Counterintelligence Corps who was present, Watts 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 Watts had committed a felony by knowingly and willfully threatening the President. He appealed.
The Supreme Court reversed:
We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose ‘against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’…The language of the political arena, like the language used in labor disputes, … is often vituperative, abusive, and inexact. We agree with petitioner that his 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.
So we have a First Amendment defense in federal threat cases.
How far does this concept go? If you engage in violent communications with politicians, is that fair game under the First Amendment since you’re necessarily talking about political issues? What about public servants as targets? What about religious leaders and members of the media? Can one claim that “getting one’s girlfriend back” through the threat of nude photos involves public affairs, and protected by First Amendment?
There has only been one § 2261A online communication prosecution so far to be dismissed on First Amendment grounds.
William Lawrence Cassidy, who had joined a religious community and then been cast out, was charged for a harassing campaign of Twitter messages directed at a religious leader. He created a number of Twitter profiles, and used those profiles and multiple blogs to direct thousands of derogatory messages to the leader. The district court held that the defendant's speech was protected expression, because despite their bad taste they challenged the target's “character and qualifications as a religious leader.” Of particular importance, the court concluded that the “Indictment amounts to a content-based restriction because it limits speech on the basis of whether that speech is emotionally distressing to [the leader].”
Several of defendants thereafter tried to fit their prosecutions into the Cassidy precedent. It turns out “public interest” is not limitless.
For example, Kris Sergentakis was upset with his co-worker who was involved in an investigation that resulted in Sergentakis’ fraud conviction involving the charity where they both worked. After he got out of prison, Sergentakis created a series of website pages and a Facebook page in which he made a number of allegations about the co- worker’s supposed animal cruelty and pedophilia. Charged under § 2261A, Sergentakis claimed in a motion to dismiss that his online activity was free speech.
The court rejected the comparison to Cassidy, where Sergentakis had argued that his communication involved the operations of a major, public charity, and the salary and actions of its then-Chief Financial Officer and Chief Executive Officer, and were therefore of public interest and protected by the First Amendment:
Simply put, this prosecution concerns the defendant's campaign of personal attacks against Walter through letters, emails, and the Internet, concerning allegations of child molestation, animal cruelty, case fixing, and rape, among others. To the extent that the defendant's speech, as he contends, concerns [the charity’s] operations, executive compensation, and management, those statements do not form the basis of the Indictment, and, at most, appear to be a thinly veiled attempt to immunize the defendant's personal attacks on Walter by claiming to speak on public issues.
The court found that the context in which these statements were made is particularly instructive, noting that while some of Sergentakis’ posts could be protected by the First Amendment in other circumstances, these were not statements made purely for altruistic reasons as part of a critical campaign against the charity in which he had long been engaged. Instead, the posts were not protected under the First Amendment because they were “integral to criminal conduct in intentionally harassing, intimidating or causing substantial emotional distress to” the victim.
We will describe some of these other cases of Love Gone Bad, a very common 2261A factual scenario where the public interest is minimal, in future posts …..