In 1998 the movie “The Siege” debuted with Denzel Washington playing the role of an FBI Agent leading a counter-terrorism unit in New York City. Bruce Willis co-stared as an over zealous Army General instituting marital law when law enforcement failed to stop ongoing terror attacks. For those of you who haven’t seen the movie, I will spare you the details except the scene in the movie that literally came true to me on 9/11. In the movie Washington sat in an auditorium with his fellow agents and NYPD officers as their pagers (remember them?) went off in unison. All too eerily similar, on 9/11, I sat in a training seminar with other cops learning about this “new crime” called Identity Theft. We were learning what we could then about how to investigate it.
At around 0900 hours, the first of several pages went off in the classroom. Those receiving them never said a word, but just hurriedly exited their seats and tore out of the parking lot presumably headed back to their PD. Within minutes, all of our pagers were going off with SWAT units being mobilized, panicked orders to “return to station ASAP”, “We’re under attack”, etc. All of us ran out of class, got into our department issues transportation and violated every codified traffic law while headed back to our stations. I remember thinking at the time this is “Just like the movie”. Speaking of departmentally issued vehicles, do you know how this story is true? Because who else would write about their “cruiser” being a Green colored, Dodge Mini-Van with four cops in it racing back to their department on that dreadful day. I had four Squirrels under the hood, 0-60 mph in fifteen minutes, and I’m not sure the van ever ran right after that day; another casualty of 9/11.
We, as a profession, and nation changed in more ways than we will probably know. Even our language changed with new terms such as Joint Terrorism Task Force, Fusion Centers, PATRIOT Act, GITMO and others. One thing that hasn’t changed though is our U.S. Constitution. In particular, lets look at the First Amendment for a moment and examine “Freedom of Speech”. Why? Because in addition to the changes mentioned above, 9/11 also caused at a minimum two Wartime Theaters (Iraq and Afghanistan) and others we will probably never know about – or haven’t happened yet. Roughly 3,000 died on 9/11, but due to (here is another term again) GWOT, or Global War on Terror, an additional 5,000+ U.S. Troops have been killed with another 25,000 wounded. This conflict isn’t going to get better and public sentiment, if you follow the polls, show that Americans are increasingly getting tired of the fight. Add all the other federal screw ups over the last decade and what you get is a very disenchanted public, those we swore to protect and not violate, who are more vocal than ever when criticizing our government. How do we protect what they say and know when not to? Put differently, when is threatening speech unprotected and how is a cop to know? It’s more complex, as is most Constitutional issues, than you probably think.
When we live in a “participatory democracy” we all have the right, expectation and civic responsibility to tell others how we think and feel. The Constitutional Framers knew this and determined that nobody should be thrown behind bars for disagreeing with the government, such as what the Colonists suffered under the King of England. The First Amendment was supposed to prevent that from happening until Congress passed the “Alien and Sedition Act” at the prodding of then President John Adams who wanted a way to throw those who publically disagreed with the government in jail for saying what they felt. Fortunately, the law only last three years on the books and then expired. President Thomas Jefferson then pardoned the 10 that Adams had been successful with imprisoning. Ironic huh? We become what we hate don’t we?
The law, as we know it is forever changing. Along with “Freedom of Speech” is the keen understanding that not all speech is free, protected, nor should be. Search Lexis Nexis, Google Scholar or any other legal database for guidance and you will continue to find muddled waters and no definitive judicial decision on when speech turns threatening or insightful. Simply put, the courts, to include the “highest court in the land” cannot agree either and maybe that’s the beauty of our legal system? For no two situations are exactly alike.
GPS for Speech
Consider this scenario for a moment – You get a call of a disturbance at a local burger joint only to find a middle-aged woman yelling at a young man saying, “I hope it’s your son who gets killed next time he is sent to a foreign county to fight! I hope you get killed too!” Can you envision this happening? I can, I’ve responded to these types of incidents. Is her speech protected?
The best roadmap we have in determining what can be said and how, first started in Watts v. United States (1969). In this case Mr. Watts a Vietnam Era draftee threaten to shoot President Johnson at a political rally in D.C. Being arrested, charged and convicted the U.S. Supreme Court reversed the appellate court ruling, overturning the conviction by saying that the statement made was more figurative speech than a “true threat”. While the Court never defined “true threat”, others have and added the following criteria:
1) Were comments made during a political debate?
2) What was the “conditional nature of the threat”?
3) What was the use of context of the speech?
To confuse us even further, lesser courts, for instance the 8th Circuit in United States v. Dinwiddie (1996) attempted to use a multi-pronged test to determine a “true threat” known as “Dinwiddie Factors” –
1) How did people react when hearing the threat?
2) Was the threat conditional?
3) Threat communicated clearly to the victim?
4) Did the suspect make similar threatening comments to the victim previously?
5) Did the victim believe the person making the threat could react violently?
More recently, in Virginia v. Black (2003) Justice Sandra Day O’Connor defined “true threats” as –
“‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”
What to Do
The best course of action, I would argue, is to take the crux of “Watts, Dinwiddie, and Black” and establish a common ground between them to make the law actionable for you. I would suggest using the following acronym to help decipher the complexities of these issues on the street –
A – Ask yourself, the victim, suspect and witnesses the same questions the courts asked themselves above. The judiciary may not have come out with clarity on this issue, but they did tell us how they think.
C – Capture the mood of the scene through witness statements, audio recordings (Dash Cam and POV type recordings), video surveillance, cell phone videos, etc.
T – Terminate the encounter with empathy if not charging someone. Know when to walk away and not make a situation worse. People are more “half-cocked” today, and rightfully so, than they probably ever have been. The greatest demonstration of power is never using it.
A lot has changed since 9/11, but the fundamental principles of our legal landscape have not. The courts will continue to interpret the intentions of the our Constitutional Framers, but the responsibility of ensuring the protections offered to our citizens by our Founding Fathers rests with you. In the eternal words of Alexander “Clubber” Williams, “There is more law at the end of a policeman’s nightstick than in all the decisions of the Supreme Court”.
About The Author:
Keith R. Lavery, M.A., CMAS, is a full-time criminal justice educator teaching at a public Career Center, University System of Ohio. He has facilitated and designed criminal justice, security, and law enforcement courses of instruction at the post-secondary level. Keith had a very diverse police career spanning nearly 20 years, working in urban and rural law enforcement settings with assignments ranging from patrol to specialized functions, to include HIDTA Drug Unit, CLANLAB Enforcement Team, SRT and Supervision. In 2008, Keith was awarded the Certified Master Anti-Terrorism designation from the Anti-Terrorism Accreditation Board. Academically, he has completed post-graduate course work dedicated toward a Doctorate in Education. Keith is currently the Law Enforcement Liaison for the Cleveland, Ohio, Chapter of ASIS International.