A short back story—
The other day, I was in a conversation in a Facebook group about why all of these Marxists can get away with verbally or through images threatening violence against POTUS. I had read the code before but this person hit me with a question I could not answer and that is the "why they get away with it". I thought it was a good question and it peaked my curiosity enough that I wanted to share it in case others may be wondering the same thing. Here is the text of the code. Clicking the link will take you to the full document. If you scroll down section 871 is highlighted. You can choose PDF or Text format.
18 U.S. Code § 871 - Threats against President and successors to the Presidency.
Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.
The terms “President-elect” and “Vice President-elect” as used in this section shall mean such persons as are the apparent successful candidates for the offices of President and Vice President, respectively, as ascertained from the results of the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. The phrase “other officer next in the order of succession to the office of President” as used in this section shall mean the person next in the order of succession to act as President in accordance with title 3, United States Code, sections 19 and 20.
Now I am not an attorney, so the following is my interpretation based on the court cases I read through and some good websites that explain things in layman's terms. (Those are listed below.)
The first thing I noticed in this document is that it does not address verbal threats. It pretty much only covers threats in writing and sent through the mail or another method of delivery.
So, I had to find some court cases that set precedence for verbal threats since they would also fall under the first amendment (freedom of speech). There are several that I found (some do not concern POTUS but they did set an overall precedent as far as what constitutes a "True Threat" as opposed to "simple hyperbole". )
In a nutshell, the verbal utterance of the threat is not in itself a crime unless there exists a reasonable amount of evidence to prove subjective intent. This basically means that unless you can prove that the person's state of mind was such that the threat made can be considered credible, its protected under the first amendment.
In other words, you basically have to prove they meant it in order for it to be a crime.
The primary case I found that deals closest with this subject was Watts v. United States 1969. You can read the full summary by clicking the link, but in short, an 18-year-old draft dodger made a verbal threat against the life of President Lyndon B Johnson at a 1966 protest by saying: (paraphrased)
“If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”
From reading through this case this man was arrested, and charged with violating the U.S. statutes against threatening the president. A jury of his peers upon hearing of the evidence agreed and found the man guilty.
The United States Court of Appeals for the District of Columbia Circuit affirmed by a two-to-one vote. 131 U.S.App.D.C. 125, 402 F.2d 676 (1968). We reverse. (the log number can be found in the summary of Watts v U.S. above)
It seems to me that the original jury looked at things from the perspective of the letter of the law, whereas the appeals court made their decision to overturn based on their determination of the person’s state of mind at the time of the incident. They focused on the expressly conditional nature of Watts’s language and reversed his conviction, emphasizing that by their nature, public debates can be “vehement” and “caustic.” They came to the conclusion that the threat was uttered in "the heat of the moment" so to speak and held no specific or credible threat to the life of LBJ.
(I wonder if LBJ took it as a threat?)
"Now actually what happened here in all this was a kind of very crude offensive method of stating a political opposition to the President. What he was saying, he says, I don't want to shoot black people because I don't consider them my enemy, and if they put a rifle in my hand it is the people that put the rifle in my hand, as symbolized by the President, who are my real enemy."
I don't know about anyone else but that sounds like a cop-out to me. The guy's threat was not credible because he was pissed off about being called to serve his country? That makes it OK to threaten the life of our president?
I guess there were plenty of snowflakes in the 60s as well, I was just a toddler so I would not have noticed.
Watts v The United States was meant to be the case that set precedence for determining what constitutes a credible verbal threat to the president. Although they did distinguish between threats and political hyperbole, they failed to set the parameters of what type of statement constitutes a "true threat". The Court only provided a framework that focused on the circumstantial background of the communication and the response of the listener. Not the letter of the law. This ambiguity left the lower courts no option but to create their own tests of what constitutes a true threat since Watts was basically left open to interpretation.
It was not until 2003, decades later that the courts again discussed the parameters for establishing what constitutes a "true threat" in Virginia v. Black where the constitutionality of Black's conviction for cross burning was challenged and found to be unconstitutional by the U.S. supreme court. Under Virginia law, at the time the simple act of burning a cross was enough to get one arrested and convicted for basically, an act that could intimidate others due to its connection with the hate group, the Ku Klux Klan.
The SCOTUS determined that burning a cross in itself was not an act of intimidation and therefore presented no "true threat" since the act itself is not intimidation unless it is specifically targeted towards a person or group of persons with a specific intent to intimidate. Which would need to be established by the evidence.
SCOTUS basically stated that each case must be tried on its own merits with evidence that the act was intended to intimidate beyond a reasonable doubt. Otherwise, it would be an unconstitutional prosecution that violated the defendants first amendment right to free speech.
There are several other cases I read that debate the definition of a true threat under the law (meaning federal law based on the U.S. Constitution, not state constitutions as was the case in Virginia v Black were SCOTUS determined that Virginias constitutional law was in violation of the U.S. constitutional laws.
The Court’s decision in Black indicates that the Supreme Court would not allow someone to be convicted simply because other individuals found the message discomforting or offensive.
In another case, United States v. Gilbert, SCOTUS determined that "the element of intent is the determinative factor separating protected expression from unprotected criminal behavior.”
In United States v. Jeffries, Judge Sutton noted: "every dictionary meaning of the noun “threat” or the verb “threaten,” whether in existence when Congress passed the law or today, includes an intent component."
So, without going through every court case that discusses this matter, I see a pretty clear reason why these people can get away with their threats towards POTUS.
The way the law is written right now, you would pretty much have to be caught in the act of trying to carry out the threat before you could be prosecuted for it.
I firmly support the first amendment, but the way the courts have worded this law is ambiguous at best. Downright nonsense in my personal opinion.
As I said earlier, I am not an attorney so I do not know all of the back channels that they use to establish the common interpretation of the law that the courts accept. This is only my interpretation of the information I read.
The reason the Marxists can get away with this is because from my understanding, all they would have to do is claim that it was a joke, or said in the heat of anger. It then becomes the burden of the prosecution to prove their intent "based on their state of mind" at the time the threat was uttered.
Yeah, unless you are a mind reader, you can never really know what any one's state of mind is at any given moment. Since you cannot prove that beyond a reasonable doubt, the entire establishment of evidence, in my opinion, would be based on supposition and assumptions, which any attorney worth their salt would decimate during the appeals process.
Given that, and the fact that the law has been overshadowed by a convoluted interpretation of the first amendment, arresting, and charging these people with a violation of 18 U.S. code 871 would be an absolute waste of time and our money.
They would easily get any conviction overturned on appeal.
Reading through all of these cases 1) gave me a migraine, and 2) really pissed me off. This is not justice, it's hiding behind the first amendment to spread hate. So what if THEIR words held no "true threat". That does not mean that some else out there who constantly hears these threats won't decide to take it upon themselves to fulfill them.
To me, this is no different than blaming the words of a song, or scenes from a video game as the trigger for someone else's violent behavior. The musician or game designer more than likely had no INTENT for their words etc. to cause that person’s act of violence so they are not directly responsible for them. Yet they are being held accountable for it in public opinion and even lawsuits none the less.
Should the same logic not be applied to a group of people who consistently use threats and intimidation to create an atmosphere of hate towards one man, our president no less? Would their screeching voices not be comparable to the lyrics of a song, their hate-filled venom spewed all over the MSM to the scenes from a violent video game? This is targeted aggression plain and simple. If all of their theatrics actually do inspire someone to attempt an assassination on POTUS, should they not also be held responsible for that person’s actions?
Threats like this, in my opinion, represent a very real danger to POTUS for that very reason and should not be protected under the first amendment. Would you agree?
SCOTUS seriously needs to close this open-ended definition of a credible threat and establish some solid and unquestionable guidelines for what types of threats are prosecutable offenses. I mean they have only been discussing it longer than I have been alive after all. I think its time to make a decision already, don't you?
They have not done that though, and that is why its OK in America to threaten bodily harm to our president without fear of being prosecuted for it.
More court cases, and information.