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.