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Baldwin & Briscoe. P.C.
Why a Bomb or Shooting Threat is not Protected Speech
October 20,  12:00 A.M.
Last updated: October 20, 2014


By:  Richard Steinmetz


On the morning of Friday, September 18, 2014, Great Mills High School was briefly on lockdown after a caller reported to the Emergency Communications Center that people were in the school with guns. 

 

The First Amendment to the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

 

While the First Amendment protects many kinds of speech, it does not give people a blanket right to say whatever they want wherever they want.  Some types of speech are regulated for commercial purposes under copyright laws. Use of symbols and pictures associated with a particular brand of product may be regulated by associated trademarks.  An individual may have a right to sue where comments made about him are defamatory. None of these restrictions apply to the issue raised by the caller.

 

The United States Supreme Court has held that threats of violence are not protected by the First Amendment.  There are three basic reasons that the Court has used to justify excluding threats of violence from First Amendment Protection: (1) protecting individuals from the fear of violence; (2) safeguarding against the disruption that such fear causes; and(3) reducing the possibility that the threatened violence will occur.

 

Sometimes the issue arises whether or not the speech is in fact a true threat of violence.  In a 1969 case, Watts v. United States, the defendant threatened to kill President Lyndon Johnson. The defendant claimed that if he was drafted, that he’d want to shoot the president.   When charged with violating the law and making a threat against the president, the defendant argued his speech was a form of political hyperbole and protected by the First Amendment.  The court agreed and reversed the conviction by the trial court.  In Watts, the court did not define what constituted a true threat, but subsequent cases have focused on three factors: (1) the fact that the comments were made accompanying a political debate: (2) the conditional nature of the threat; and (3) the context in which the threat was made.  In Watts, the court held that the defendant was not making a true threat against the president and therefore overturned the conviction.

 

Another important decision in this regard came in the case of Brandenburg v. Ohio, also decided in 1969.  In that case, the Supreme Court reversed a conviction of a Ku Klux Klan leader under an Ohio statute which prohibited the advocacy of crime, sabotage, violence or terrorism as a means of accomplishing political or industrial reform.  The Court held that the First Amendment protected such advocacy, so long as the advocacy was not directed to promoting imminent lawless action.


States such as Maryland enact statutes prohibiting false police reports to protect against a waste of resources, both resources of the state and of private individuals.  When a threat is made, it usually results in the evacuation of the building, and the response of various emergency personnel to investigate and determine whether there is a legitimate threat.  It is a misdemeanor to make a false statement with the intent to deceive and to cause an investigation or other action to be taken as a result of the statement, report or complaint.  A defendant could face up to six months in jail and a $500 fine if convicted.




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