The Culture of Life and the First Amendment

Thursday, April 07, 2005

The Culture of Life and the First Amendment

The criminal complaint against a woman who allegedly threatened Michael Schiavo's life raises all sorts of issues. Dera Jones posted the following on an AOL message board about the Schiavo case:
When FBI Special Agents arrived at her apartment, Jones told them she had posted the message and said she had been "just kidding." The agents arrested her, and she has now been charged in federal court with violating 18 U.S.C. s. 875(c), which makes it a crime to "transmit[] in interstate commerce...any communication containing...any threat to injure the person of another." The maximum punishment is five years' imprisonment and a fine.

As for the title of this post, I assume the "culture of life" reference is obvious. As for the First Amendment, it does not protect so-called "true threats."* I don't know enough about this area of constitutional law, or about how the courts have construed this statute, to say more about whether the AOL post was illegal. But I do wonder whether, even if Jones can be prosecuted, she should be prosecuted. An anonymous message on an Internet site--a message that was not sent or directed to the potential victims themselves--strikes me as the sort of thing we shouldn't be clamping down on too hard. I become a bit more dubious about prosecution when I consider the fact that Jones voluntarily told the agents she'd posted the message, which was something they didn't know as it wasn't clear to whom the screen name belonged, and the fact that she also said she had been "just kidding."

My guess is that the First Amendment will not bar this prosecution. But I'm not sure whether it's a good idea to go forward with it anyway.

*In a cross-burning case, the Supreme Court described "true threats" as follows:
“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.” Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.
My intuition--that a death threat mailed to the victim is different from the same threat posted on an Internet message board that the victim doesn't necessarily even know about--seems to have some constitutional significance. But I really don't know enough about the doctrine to say on the basis of this one Supreme Court excerpt that Jones's post is protected by the First Amendment.

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