The shifting line between free speech and a criminal threat

0:00This message comes from CubeSmart Self Storage. Whether you're moving, renovating, or just need some extra room in your home, CubeSmart offers storage that puts you first. Choose from storage lockers to climate-controlled units. Find storage near you at CubeSmart.com. August 27, 1966. A group of mostly teens and men in their early 20s met in Washington, D.C. Right on the Washington Monument grounds near the Sylvan Theater. They were part of the W.E.B. Du Bois Club, a national youth organization sponsored by the Communist Party USA. It was a left-wing group that was riding the wave of the civil rights movement, labor organizing, and anti-big government.

0:48They were really protesting the Vietnam War and the racially disparate use of the draft. Black men were only 12 % of the U.S. population, but they made up over 30 % of the ground combat battalion troops in Vietnam. There was a discussion group about police brutality. And in that group, there was one man named Robert Watts, who made an off-the-cuff comment. And allegedly, Robert Watts, who was 18 years old at the time, said something to the effect, You know, look, if they make me go fight in Vietnam, the first person I'm going to put in my scope is LBJ. They're not going to make me go kill my black brothers.

1:32LBJ, the president. Yeah, LBJ for Lyndon Baines Johnson, the president of the United States. What Robert Watts actually said was, quote, If they ever make me carry a rifle, the first man I want to get in my sights is LBJ. When he made that statement, everybody just laughed. But there was someone in the crowd who didn't think it was funny. An investigator with the U.S. Army. You know, Scope, President LBJ, oh my gosh, that's a threat. Over the past few years, threats and harassment against public officials have become much, much more common. And this includes everyone from the President of the United States.

2:15It's the third time in a month that shots were fired near President Trump, who was at the White House last night. To members of Congress. Minneapolis man is facing federal and state charges following this week's attack on Democratic Congresswoman Ilhan Omar, who was sprayed with liquid at a town hall event. To state and local officials. There have been some threats, right, both political and personal to Indiana lawmakers. And even civil servants, like local librarians. This Livingston Parish librarian asked not to be identified. Because they will fire me in a heartbeat. Threats have always been a part of U.S.

2:51history. And they've often come in times of political turmoil or cultural tension in the country. But the internet also opened a new chapter in the U.S., making threats easier to make and harder to trace and prosecute. So what is a threat? How has it changed? and how do we balance safety and free speech in a world where the two seem increasingly at odds? I'm Randa Abdel Fattah. On this episode of ThruLine from NPR, we're going to tell you the stories of the people who have towed the line between protected speech and true threats.

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4:39are ready to get to work. To find your next tasker, visit TaskRabbit.com or download the app. Part 1. Watts vs. United States. After that Army officer overheard Robert Watts make those comments about President LBJ, he was arrested and prosecuted under a federal law from 1917 that made it illegal to threaten And that was one thing that made his arrest pretty unusual, because speech laws in the United States are unusually permissive. The First Amendment protects a lot. We're a free speech outlier in the world. This is David L. Hudson, Jr. I'm an associate professor of law at Belmont University Law School in Nashville, Tennessee.

5:25And he's a First Amendment fellow for the Freedom Forum. You know, in many other countries, hate speech is unprotected speech. In the United States, hate speech for adults is constitutionally protected unless it incites imminent lawless action, rises to the level of a true threat, or is considered fighting words. And that's very difficult for a lot of people to accept.

5:54If they ever make me carry a rifle, the first man I want to get in my sights is LBJ. Now, when Robert Watts said this, he was not really meaning that he was going to go assassinate President Johnson. It really was saying that this war was unjust, that there was a lot of, obviously, social discrimination, racial discrimination against African Americans. And that the real enemy was the government sending us overseas to fight a war that we really didn't need to have in the first place. And Robert Watts wasn't the first person to have gotten in trouble for saying something about the president. What happened to Robert Watts is a modern-day iteration of what happened to Luther Baldwin back in New Jersey in the time of the Alien Sedition Act in 1798.

6:43Luther Baldwin was a patron in a bar. Who was drunk. President Adams is coming in a procession. A ceremonial cannon salute was planned for the president. And Luther Baldwin allegedly, in nothing more than a drunken rant, said, I hope if they fire at President Adams, they fire through his arse. And he ends up getting prosecuted for violating the Alien and Sedition Act of 1798. The Alien and Sedition Acts made it a crime to publish or speak, quote, false, scandalous and malicious statements against the federal government. The Federalist-controlled Congress wanted to silence any political opposition in the New Republic, which was on the brink of war with France.

7:28The act expired just a few years later, in 1801. But in 1917, towards the end of World War I and another moment of national worry, a new law was passed, making it a crime to make threats against the president. This was the law that Robert Watts was arrested for half a century later, when he made those comments about LBJ. The 1960s was a big moment for the First Amendment in the Supreme Court. By the time of the Watts case, several landmark cases over the previous three decades had already helped define what speech was unprotected speech by the First Amendment. Speech like defamation or using, quote, fighting words that are intended to provoke violence.

8:12or speech that created a, quote, clear and present danger. And by the 1960s, those First Amendment definitions would be tested and challenged again. I think there are multiple reasons why the 60s became this flashpoint for the First Amendment. This is Marianne Franks. I'm a professor at the George Washington Law School, and I'm also the president and the legislative and tech policy director of the Cyber Civil Rights Initiative. And she's written a couple of books about the First Amendment, which we'll share with you in our show notes. There's a lot of clashes happening in the 1960s, a lot of liberal versus conservative, a lot of anti-war versus pro-public order.

8:53So I think that's why you're seeing so many tensions and seeing the Supreme Court try to navigate those tensions in the best way it can. As part of those tensions, the U.S. government assigned a special unit of the military. Called the Army Counterintelligence Corps. whose job was to monitor protests. There was concern that there was espionage and there was concerns about communism. But it had also, by the 1960s, had also become very much a question of, you know, who is someone who is just protesting the kind of efforts that the federal government says we have to be involved in. So that's how an Army officer overheard Robert Watts.

9:31You've got an investigator from that unit who is monitoring these anti-war protests that are happening on the Washington Monument. And that's how all this kicks off. After Watts was convicted of threatening the president, he challenged the ruling in the U.S. Court of Appeals. That court upheld his conviction by a two-to-one vote. But that one dissenting vote by Justice James Skelly Wright would be important. What was the nature of his dissent? What did he say that was his reasoning? Essentially what Judge Wright is saying is that we've got to allow breathing space for critical speech. Many statements on political affairs may, by implication or through hyperbole, encompass the violent end of the chief executive.

10:19The threat of punishment for all such statements would exert a chilling effect on political speech too drastic to be consistent with the guarantee of free expression. You've got the civil rights movement and you've got the Vietnam conflict. There's reason to have dissenting voices. There's reason to have different points of view, right? And that's what was on the court's mind when it took up the Watts case the following year. The issue they're looking at essentially is whether Watts engaged in an unprotected true threat or whether he engaged in a form of protected speech. But something kind of surprising happens.

10:59At least it's surprising to us today. The court decides not to hear any oral arguments in the case. It usually means from the court that it's a sign that they thought this was an incredibly easy case. They just really thought this is really straightforward. And that's because just a few years before Watts, the Supreme Court had decided another big free speech case, the New York Times v. Sullivan, which protected the media by making it hard for public officials to sue for defamation. In its opinion, the court said, quote, debate on public issues should be uninhibited, robust, and wide open, and it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

11:45So they're really saying that was the standard that we have committed ourselves to, that especially public officials are going to have to tolerate, to some extent, even really aggressive and vicious-sounding kinds of statements because that's what it means to serve in public office, and that's what it means to be committed to robust debate. So when they looked at the Watts case and the Justice Wright opinion, which laid out the context in which Robert Watts made his comments, it was pretty open and shut. The Supreme Court, on April 21, 1969, issued its ruling. The first threshold question is, what does it mean to make a threat?

12:26And that's when they say we only would be focused here on true threats. True threats. And it's at that point they say what we mean by a true threat or what we assume is a true threat is one that has to be more than just sort of loose talk or political hyperbole. The court focused on what we have now come to refer to as the so-called Watts factors. One was the context in which the statements were made. A group of activists in a political discussion group. Then there was number two. The threat was not unequivocal. It was very conditional, right? If they draft me and send me to Vietnam, right, the first person I'm going to put in my scope is LBJ.

13:08And then the third thing was the reaction of the listeners, the reaction of the audience. They laughed. They knew it wasn't a serious attempt to assassinate the president. It was a jest. The U.S. Supreme Court ruled in favor of Robert Watts. Justice William O. Douglas, in the Watts decision, writes a separate concurring opinion. And towards the end of his opinion, he essentially says, I thought the days of the Alien and Sedition Act were over. That was one of the sordid, sorriest chapters in our history. And yet here we are again prosecuting somebody for a comment that was really just made in jest.

13:47It wasn't a true threat. You know, Luther Baldwin didn't mean for a canon to fire John Adams and Robert Watts didn't mean that he was going to assassinate President Johnson. Watts' conviction was overturned and he was acquitted.

14:06What precedent does the Watts case set? What the Watts case established is it actually uses the term true threats. And it says true threats are an unprotected category of speech. So true threats would enter the legal lexicon, like certain obscenities or libel or fighting words. And so Watts is profoundly important because it signifies that true threats are an unprotected category of speech. Watts is also important because it said that not all speech that's critical of the president is a true threat. Not all speech that criticizes public officials.

14:52Coming up, what happens when speech is about people who aren't elected? What the U.S. Supreme Court recognized is not all cross-burnings are the same. How white supremacists help define true threats.

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16:35That's D-A-T-A-I-K-U dot com slash NPR. Part 2. Virginia vs. Black. In 1969, the Supreme Court decision, Watts vs. United States, defined a certain category of protected speech, the kind of spouting off about a public official that might be impolite, but was not considered to be a so-called true threat. What we had, honestly, was a period of confusion in the lower courts because the Supreme Court did not define exactly what a true threat was. That would happen about 30 years later, in the early 2000s, when the Supreme Court took on another true threat case. Actually, two separate cases that were merged together.

17:23Both of them revolved around cross burnings.

17:30In one case, you had a guy by the name of Barry Elton Black. What we had in the case of Barry Black was he heard that he's from Pennsylvania. He heard that down in Carroll County, blacks and whites were holding hands on the sidewalk. He was a local Klan leader. This is 1998 in Virginia, not during Jim Crow. And so they came down, he came down, and they had this event. They chose a spot near an open stretch of highway where they erected a 30-foot cross, such as high as these columns. And he burned a cross with the permission of the property owner on a piece of land that was right near a state highway.

18:17And they burned it at night with a loudspeaker and talk about taking a 30-30 and randomly. It's hard to hear because Justice Anthony Kennedy speaks over Virginia State Solicitor General William Hurd. But he says the men were talking about randomly shooting Black people. And a woman related to the property owner witnessed this and was terrified. There were about 25 to 30 people there. and she was horrified to see these people in Klan hoods. Barry Black was arrested for violating a Virginia state law that outlawed burning a cross in order to intimidate a person or group. And the law specified that any cross burning was inherently evidence of intent to intimidate.

19:01Black was convicted and fined$2 ,500. That was one case. The other case involved two individuals, Mr. O'Mara and Mr. Elliott. In May 1998, Richard Elliott and Jonathan O'Meara attempted to burn a cross on the lawn of Elliott's neighbor. By the name of James Jubilee. James Jubilee was a black man who had moved next door to Richard Elliott. And Mr. Elliott was firing his gun in his backyard. Jubilee had complained to Mr. Elliott's mother. And she responds, well, look, he likes to shoot guns, so he just shoots them in the backyard. Elliott's mom said he shot firearms as a hobby. The backyard was a shooting range.

19:49On May 2, 1998, Elliott and O'Mara drove a truck onto Jubilee's property. They planted a cross and set it on fire. They were arrested under the same Virginia law as Barry Elton Black. So these two cases were consolidated in front of the Supreme Court. And the question that they were trying to answer was what exactly? Whether this statute itself, which criminalizes burning of a cross with an intent to intimidate others, does it violate the First Amendment? And at the core of that question, and what was debated in the court, was what does the action of burning a cross mean? What's interesting is that the court's conducting an oral argument in this case, and they're going about their business.

20:41And all of a sudden, a profoundly unusual thing happened. Justice Clarence Thomas asked a question. Mr. Dreeben, aren't you understating the effects of the burning cross? Why is that profoundly unusual? I don't think he had spoken in six to eight years at a Supreme Court argument. Justice Thomas, who at the time was the sole Black justice on the court, agreed with the state of Virginia. He's like, nobody burns a cross just for the heck of it. It's my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and the Ku Klux Klan. And all of a sudden he talks about the Klan and the burning cross being a tool, a tool used in lynching.

21:31And this was a reign of terror and the cross was a symbol of that reign of terror. Isn't that significantly greater than intimidation or threat? Even if we can't necessarily go back and say, did that speaker at that moment, when they're burning the cross, was that their intention? To some extent, it doesn't matter because that is the impact certainly on someone who is Black. What we always know as someone who's targeted by that kind of activity, that that is meant to intimidate you and put you in fear that the next step is going to be physical violence. Whether or not that physical violence ever transpires is somewhat beside the point.

22:10The point is that that is a sign that is going to cause that kind of fear. My fear is, Mr. Dreeben, that you're actually understating the symbolism and the effect of the cross. It was really a profoundly significant moment that Clarence Thomas spoke. But it wasn't the only factor they considered. The Supreme Court announced its ruling the following spring, on April 7, 2003. The Supreme Court today upheld state laws that make cross-burning a crime, but only in limited circumstances where the purpose of the burning is intimidation. And ultimately what the U.S. Supreme Court recognized is not all cross-burnings are the same.

22:54Not all cross-burnings are the same. The act of burning a cross may mean that the person is engaging in constitutionally proscribable intimidation. Or it may mean only that the person is engaged in core political speech. So even though cross burnings have been used to intimidate Black and Jewish people, they've also been used as a part of KKK rituals celebrating their Klan identity. The court said those two scenarios are different. Sometimes people burn crosses as a real intent to intimidate as a tool of terror, like what Elliot and Omara did to the Jubilee family. Like you get a cross burned in your backyard, right?

23:38You realize what message that sends. People want you dead. People want you to move out of the neighborhood, disappear, or we're going to kill you. Well, because historically it would mean they're going to come and potentially lynch you. Exactly. And that's very different, though, than what Barry Elton Black did. Barry Elton Black burned a cross as part of a Klan meeting as sort of this shared group ideology. In its ruling, the Supreme Court said that in order to be a true threat, quote, 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, unquote.

24:21And so that was profoundly significant because the Supreme Court, in the course of its decision, gave us at least something close to a definition of a true threat. what the Watts decision did not do. But still, Justice Clarence Thomas dissented. He believed the very action of burning a cross was inherently meant to intimidate. And that question of what an action was meant to convey would come back to the court decades later. Coming up, how far will the court stretch true threats in the name of defending democracy?

25:03Hola, soy Victor de la Ciudad de México. Felicidades por su NPR's People's Choice Award. And you're listening to Throne Line from NPR. This message comes from Travel Nevada. Sand dunes, old saloons, high nudes, pioneer trails and cowboy tales, snooze emails. Get a little out there. Plan your trip at www.travelnevada.com. Support for this podcast and the following message come from Dataiku. AI agents are transforming how enterprises work. The problem is many operate in secret. The right people rarely know what their agents are doing, if they're doing it right, or that they even exist at all. Dataiku gives companies one place to see, control, and measure every agent across the entire business.

25:54Visit dataiku.com slash NPR. That's D-A-T-A-I-K-U dot com slash NPR. This message comes from Mint Mobile. If you're tired of spending hundreds on big wireless bills, bogus fees, and free perks, Mint Mobile is for you. Shop plans at mintmobile.com slash switch. Taxes and fees extra. See Mint Mobile for details. Part 3. Counterman vs. Colorado. The cases that followed the Supreme Court's 2003 ruling on cross-burnings, that their true threats in some cases protected political speech in others, revealed a deep divide in the lower courts over whose perspective should get priority when a threat is made.

26:42Does the speaker have to know why they're making a threat, actually mean to be threatening when they spoke? Or could a reasonable person just say, no, a threat is a threat, and that's enough? A lot of this confusion in the 2000s paralleled the rise of social media and increasing political and social tension in the country. Lots of threats fell into a gray area. Law professor David Hudson Jr. experienced that firsthand. My wife's African-American, and for a time we were living in Smyrna, Tennessee. And we're walking down the side of the road, and four men drive up in a pickup truck with three Confederate flags almost run us off the road.

27:26They were chanting, white power, white power, white power. Wow. Now, this was at the time that Obama had been elected. And there was something about Obama getting elected that caused this violent, virulent racism to just spew up. Online threats to the president became a major concern after Barack Obama was elected in 2008, which not only made it more difficult for the Secret Service, but has also made it challenging for the Supreme Court, because the kinds of threats people could make and how easily they could make them was changing fast. If we're worried about the harm that the speech might cause, we maybe do need to think more carefully about how the internet has made it so that there is a kind of mix of speech and conduct almost always, right?