Reporter writing article on proffr/mattd and threats

Declan McCullagh declan at
Wed Jul 2 14:55:36 PDT 2003

While we're on this topic, some Supreme Court cases...


This is an indictment under the Espionage Act of June 15, 1917, c. 30,
tit. 1, 3, 40 Stat. 219, as amended by the Act of May 16, 1918, c. 75,
1, 40 Stat. 553 (Comp. St. 1918, 10212c). It has been cut down to two
counts, originally the third and fourth. The former of these alleges
that on or about June 16, 1918, at Canton, Ohio, the defendant caused
and incited and attempted to cause and incite insubordination,
disloyalty, mutiny and refusal of duty in the military and naval
forces of the United States and with intent so to do delivered, to an
assembly of people, a public speech, set forth. The fourth count
alleges that he obstructed and attempted to obstruct the recruiting
and enlistment service of the United States and to that end and with
that intent delivered the same speech, again set forth. [conviction upheld]
Petitioner's remark during political debate at small public gathering
that if inducted into Army (which he vowed would never occur) and made
to carry a rifle "the first man I want to get in my sights is
L. B. J.," held to be crude political hyperbole which in light of its
context and conditional nature did not constitute a knowing and
willful threat against the President within the coverage of 18 U.S.C. 871 (a).
Appellant, a Ku Klux Klan leader, was convicted under the Ohio
Criminal Syndicalism statute for "advocat[ing] . . . the duty,
necessity, or propriety of crime, sabotage, violence, or unlawful
methods of terrorism as a means of accomplishing industrial or
political reform" and for "voluntarily assembl[ing] with any society,
group or assemblage of persons formed to teach or advocate the
doctrines of criminal syndicalism." Neither the indictment nor the
trial judge's instructions refined the statute's definition of the
crime in terms of mere advocacy not distinguished from incitement to
imminent lawless action. Held: Since the statute, by its words and as
applied, purports to punish mere advocacy and to forbid, on pain of
criminal punishment, assembly with others merely to advocate the
described type of action, it falls within the condemnation of the
First and Fourteenth Amendments. Freedoms of speech and press do not
permit a State to forbid advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce
such action. Whitney v. California, 274 U.S. 357 , overruled.
Appellant was convicted of violating that part of Cal. Penal Code 415
which prohibits "maliciously and willfully disturb[ing] the peace or
quiet of any neighborhood or person . . . by . . . offensive conduct,"
 for wearing a jacket bearing the words "Fuck the Draft" in a corridor
of the Los Angeles Courthouse. The Court of Appeal held that
"offensive conduct" means "behavior which has a tendency to provoke
others to acts of violence or to in turn disturb the peace," and
affirmed the conviction. Held: Absent a more particularized and
compelling reason for its actions, the State may not, consistently
with the First and Fourteenth Amendments, make the simple public
display of this single four-letter expletive a criminal
offense. Pp. 22-26.

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