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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

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