The Constitution's Guide To Handling Threats And Safety

The US Constitution Annotated outlines the country's approach to 'true threats' and the limits of free speech. The Supreme Court has cited three reasons why threats of violence are outside the First Amendment: protecting individuals from the fear of violence, the disruption that fear engenders, and the possibility that the threatened violence will occur. However, the Court has also acknowledged that emotionally charged rhetoric that does not incite lawless action must be regarded as protected speech. In the case of Watts v. United States, the Court held that only true threats are outside ordinary First Amendment protections. The Constitution also outlines the country's approach to protecting its citizens from foreign terrorists and other national security threats, including through visa and immigration vetting processes.

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Intimidation as a true threat

The First Amendment of the US Constitution protects the freedom of speech and assembly, but the Supreme Court has ruled that threats of violence are not covered by this amendment. Specifically, true threats are outside the protection of the First Amendment. Intimidation can be prohibited as a type of true threat. Intimidation is a behaviour that usually involves deterring or coercing an individual or group by threatening violence.

Intimidation as a political process can be employed by one country to compel or deter another country from acting in a certain way. For example, an intimidating country might put an embargo on items that the target country depends on for import, forcing their compliance. Certain countries also use terrorism as an intimidation tactic.

On a personal level, intimidation can be used as a management strategy to signal to potential rivals that they may face consequences if they act against those in charge. Intimidation can also take the form of sexual or racial discrimination, which is considered a criminal offence in several countries. Intimidation may be employed consciously or unconsciously, and it can manifest as coercion, emotional manipulation, verbal abuse, purposeful embarrassment, or physical assault.

In the US, "criminal intimidation" is a punishable offence in several states, although the definition of the crime varies by state. For example, in some states, a person commits the offence of intimidation when they communicate a threat to inflict physical harm on another person under circumstances that reasonably tend to produce fear. Cross burning, for example, has been deemed a form of intimidating and unconstitutional speech, given the history of cross burning in the country and its intent to create a pervasive fear of violence in victims.

Protection from foreign terrorists

The Constitution grants the President the authority to protect the United States from foreign terrorists and other national security and public safety threats. This includes the power to evaluate and adjust regulations, policies, and procedures related to national security and to recommend actions to safeguard the constitutional rights of American citizens.

One crucial aspect of this protection is the visa-issuance process, which plays a vital role in identifying and preventing the entry of individuals with terrorist ties or intentions. The Immigration and Nationality Act (INA) and other relevant laws guide this process, ensuring that those admitted into the country do not pose a threat to national security or espouse ideologies that contradict American values.

To this end, the United States must be vigilant in screening and vetting all aliens seeking admission, particularly those from regions with identified security risks. This includes re-establishing uniform standards and procedures for the visa-issuance process, as well as stringent identification verification for all aliens, including refugees and stateless individuals.

Additionally, the government must be proactive in identifying and countering threats from foreign nationals who seek to undermine the fundamental constitutional rights of Americans, including freedom of speech and religion, by preaching sectarian violence or advocating for the overthrow of American culture and values. It is also important to promote the proper assimilation of lawful immigrants and encourage a unified American identity attached to the Constitution and its founding principles.

Furthermore, the government must address the issue of terrorist financing and money laundering. This involves financial institutions sharing information and the government publishing reports on suspicious financial activities to detect and disrupt the financial networks that support terrorist organizations.

Free speech and true threats

The First Amendment of the US Constitution protects the freedom of speech, but there are limitations to this right. For instance, the Supreme Court has ruled that "true threats" are not protected by the First Amendment. This means that certain types of speech, such as obscenity, child pornography, fighting words, and the advocacy of imminent lawless action, can be prosecuted under state and federal criminal laws.

One example of a "true threat" is a case where an anti-Vietnam War protester, Robert Watts, was prosecuted and convicted for threatening President Lyndon B. Johnson. Watts had said at an anti-war rally, "If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J." The Supreme Court ruled that Watts' remark was a form of "political hyperbole" and did not constitute a true threat, setting a precedent for future cases involving threats made against public officials.

Another case that dealt with "true threats" was Virginia v. Black in 2003, where the Supreme Court considered a First Amendment challenge to a state law that banned cross burning with the intent to intimidate. The Court held that states could prohibit such cross burnings as a true threat, as they were intended to place a person or group in fear of bodily harm or death. However, the Court also acknowledged that cross burning done as a statement of ideology or in movies would be protected speech.

In recent years, the Supreme Court has continued to grapple with the prosecution of threats, especially those made over social media. In 2023, the Court adopted the rule that speech is not protected if the speaker "consciously disregarded a substantial risk that his communications would be viewed as threatening violence". This ruling set a higher standard for prosecuting individuals who make threatening statements, requiring prosecutors to prove that the speaker intended to communicate a threat.

While the First Amendment protects freedom of speech, it is important to note that certain types of speech, such as true threats, are not protected. The Supreme Court has provided guidance on what constitutes a true threat, and prosecutors must meet a high standard to prove that an individual's speech is not protected by the First Amendment.

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True threats and the First Amendment

The First Amendment of the US Constitution protects citizens' freedom of speech, but this does not extend to "true threats". True threats are a category of speech that is not protected by the First Amendment and can be prosecuted under state and federal criminal laws. The Supreme Court has cited three reasons why threats of violence are outside the First Amendment: protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.

True threats are defined as statements where the speaker intends to communicate a serious expression of an intent to commit an act of unlawful violence against a particular individual or group. The speaker need not intend to carry out the threat, but the prosecution must prove that they intended to communicate a threat. For example, in Virginia v. Black (2003), the court ruled that Virginia's law banning cross burning with the intent to intimidate did not violate the First Amendment. The Supreme Court held that states may criminalize cross burning as long as the burden of proof is on the prosecutors to demonstrate that the act was intended as a threat and not as a form of symbolic expression.

However, the line between protected and unprotected speech is not always clear. In some cases, the Court has held that emotionally charged rhetoric or political hyperbole did not constitute a true threat. For instance, in Watts v. United States (1969), the Supreme Court sided with an 18-year-old anti-war protester who was being prosecuted for allegedly threatening President Lyndon B. Johnson. The defendant, an anti-war protester, had stated at a rally, "If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.". While the Court deemed the statute constitutional, it held that the defendant’s remark was a form of "political hyperbole" that did not constitute a "true threat".

The question of intent is critical in determining whether a statement is a true threat. In Counterman v. Colorado (2023), the Supreme Court ruled that speech is not protected if the speaker "consciously disregarded a substantial risk that his communications would be viewed as threatening violence". In this case, Billy Raymond Counterman was convicted of stalking after sending numerous disturbing messages over two years to a female musician using Facebook. The ACLU and its coalition partners have argued that the First Amendment requires "subjective intent to threaten" as a necessary element of a true threat, to protect speakers from being convicted solely based on how their statements might be perceived by others.

Cross burning as intimidation

The practice of cross burning as a form of intimidation has a long history, dating back to 14th-century Scotland, where tribes used it as a signalling device. In the context of the United States, cross burning has been associated with vigilante groups and the Ku Klux Klan, serving as a tool to terrorize African Americans, Jews, Roman Catholics, and other marginalized groups.

The modern use of cross burning is linked to the revival of the Ku Klux Klan in the early 20th century. The novel "The Clansman: A Historical Romance of the Ku Klux Klan" by Thomas Dixon Jr., published in 1905, introduced the idea of cross burning as a Scottish rite, summoning the clan on an errand of life and death. This novel played a significant role in shaping the public perception of cross burning as an intimidating practice.

In the United States, cross burning has been a subject of legal debate, with state courts and the Supreme Court weighing in on its constitutionality. The First Amendment guarantees freedom of speech, and some have defended cross burning as a form of protected speech. However, several states, including Virginia, have passed laws banning cross burnings, particularly when done with the intent to intimidate.

In the landmark case of Virginia v. Black in 2003, the Supreme Court of the United States held that any state statute banning cross burning solely on the basis of prima facie evidence of intent to intimidate violates the First Amendment. The Court distinguished between "threats of intimidation" and the Ku Klux Klan's "messages of shared ideology", arguing that cross burning can be a form of expressive activity protected by the First Amendment. However, the Court also acknowledged that cross burning with the proven intent to intimidate can be a criminal offense and a valid conduct restriction within the constitutional power of the government.

The legal debate surrounding cross burning as intimidation continues, with justices offering differing opinions on the expressive meaning and constitutionality of such acts. While some argue that cross burning is a form of intimidation that falls outside the bounds of protected speech, others defend it as a symbolic expression of ideology or group solidarity, which is protected under the First Amendment.

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