Academic

Intemperate Speech: True Threat? Incitement of Crime?

By Calvin Massey

The Drudge Report carries a story of a man in Bonner County, Idaho who has posted a sign on his property calling for a "free public hanging" of President-elect Obama, Senator Kerry, Speaker Pelosi, and Al Sharpton.  Christine Holbert, the spokesperson for the county human rights task force (quoted in the article) appears to need a little instruction in the constitutional law of free speech.  Unless this sign is either a true threat of his own criminal intentions or constitutes an incitement of others to commit immediate crime, the sign-poster is free to display his rather odious sentiments.  This is almost surely not a true threat.  The sign-poster lives in a rural part of the nation, quite remote from any of President-elect Obama, Speaker Pelosi, Senator Kerry, or Mr. Sharpton.  There is no overt indication that he has indicated his own intention to assault any of Obama, Kerry, Pelosi, or Sharpton.  It is unlikely that his sign is either a "serious expression of an intent to commit an act of unlawful violence" or that the speaker intends to place any of these people in reasonable "fear of bodily harm or threat"  This is even less inflammatory hyperbole than that which the Court found to be protected speech in Watts v. United States, 394 U.S. 705 (1969) (Speaker: "I am not going [to my draft physical.] If they ever make me carry a rifle the first man I want to get in my sights is LBJ.")  Nor is this an incitement of others to commit crime, under the test of Brandenburg v. Ohio, 395 U.S. 444 (1969), because it is not likely to produce "imminent lawless action."

Full post as published by The Faculty Lounge on November 16, 2008 (boomark / email).