About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

13 Rutgers J. L. & Pub. Pol'y 150 (2015-2016)
Threatening Speech: The Thin Line between Implicit Threats, Solicitation, and Advocacy of Crime

handle is hein.journals/rutjulp13 and id is 164 raw text is: 

Rutgers Journal of Law & Public Policy


                      THREATENING SPEECH:
                      THE THIN LINE BETWEEN
   IMPLICIT THREATS, SOLICITATION, AND ADVOCACY OF
                                   CRIME
                                 Marc Rohr*

I. INTRODUCTION

      Consider the following hypothetical Internet postings: (1) I'm going to kill you,
Judge X! (2) You deserve to die, Judge X! You'd better be careful-I know where to
find you! (3) Judge X should be shot! (4) I urge the next patriot who has the chance
to shoot and kill Judge X, without further delay! (5) Judge X deserves to die. Here are
his home and office addresses. (6) I will pay $1o,ooo to anyone who takes action
leading to the assassination of Judge X.
      Now ask yourself the following questions? Which, if any, of those statements, has
value deserving of First Amendment protection? Which of those statements, if any,
would Judge X not perceive as threatening, if he were aware of it? I use the word
threatening here in a colloquial, not a legal, sense-meaning that the speech, when
heard or seen by its target, would result in serious apprehension of danger, at the hands
of either the speaker or a third party who responds to the speech. I submit that any of
those statements, in the absence of some indication of lack of seriousness on the part of
the speaker, would be experienced as threatening, in that everyday sense of the word.
I contend, further, that none of the six statements has any significant value.
      But the six statements would presumably not be treated the same for First
Amendment purposes. Statement (1) would likely be viewed as an explicit true threat,
and thus totally without First Amendment protection.' Statement (2) might well be
viewed as an implied true threat, with the same legal status as an explicit threat.2
Statement (3), however, could receive constitutional protection, under Brandenburg v.

   * Professor of Law Emeritus, Shepard Broad College of Law, Nova Southeastern University. J.D.
Harvard, 1971; B.A. Columbia, 1968.
   1 Elonis v. United States, 135 S. Ct. 2001, 2015 (2015) (Alito, J., concurring in part and dissenting in part);
Virginia v. Black, 538 U.S. 343, 359 (2oo3).
   2 See note 25, infra.


                                      150


Fall 2015


Vol 13: 2

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most