Robert De Niro's YouTube rant targeting the President of the United States, available to all on YouTube, may have surprised many conservative fans of the movie star, but it never crossed the Constitutional divide into the zone of conduct that could be the basis of criminal liability, that is, a “true threat.” The same may be said for comedian Kathy Griffin's Twitter post in which she is pictured holding a mask made to look like the severed head of President Trump. Interestingly, while Facebook has recently been roundly criticized for lapses in privacy protections for its customers, its user friendly platform available for threatening speech has garnered little attention. The opportunity to express oneself to a vast audience on the global Internet stage presents continuing legal issues when the conduct falls into the electrified constitutional free speech versus true threat danger zone. This article will discuss recent cases addressing some of the more frequently raised issues concerning the parameters of the true threats doctrine.

True Threats Doctrine

The U.S. Supreme Court first articulated the true threats exception to speech protected under the First Amendment in Watts v. United States, 394 U.S. 705 (1969). In Watts, the defendant, a Vietnam war protestor, was arrested under 18 U.S.C. §875(c), which prohibits threats against federal officials. Defendant had stated that if he was drafted and issued a rifle, the first person in his sights would be President Lyndon B. Johnson. His conviction was reversed by the high court, finding that his statement was “political hyperbole” rather than a true threat. Three factors were emphasized by the court in its decision: the context was a political speech; the statement was “expressly conditional” and the “reaction of the listeners” who “laughed after the statement was made.” Id. at 707-08. The burden is on the government to demonstrate that the suspect speech falls within one of the narrow categories of unprotected speech, such as true threats, fighting words, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct.” True threats are not protected speech and may be defined as 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. Virginia v. Black, 538 U.S. 343, 347-48 (2003). Whether or not the speaker intends to carry out the threat is immaterial to deny him constitutional protection. This is because the true threats prohibition is intended to protect individuals from the “disruption” and “fear of violence” as much as from the violence itself. Virginia v. Black, 538 U.S. at 360.

In Black, the U.S. Supreme Court determined that fighting words—those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction—are generally proscribable under the First Amendment.

In this regard, advocacy of the use of force or violation of law is protected speech unless the advocacy of violence is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

Question of Fact for the Jury

In United States v. Jordan, 2017 U.S. Dist. LEXIS 175682 (W.D.N.Y. Oct. 24, 2017), a case before the U.S. District Court of the Western District of New York, defendant was charged in an indictment, among other offenses, with knowingly and willfully transmitting a threat in interstate and foreign commerce in violation of 18 U.S.C. §875(c) when he placed the following post on Facebook: “Let's Start Killin Police Lets See How Dey Like it.” Defendant moved to suppress the Facebook posts, among other evidence against him, alleging that his posts did not constitute a true threat. The court determined that the law of the Second Circuit is clear in that a jury, not the court, should determine whether an alleged threat is a true threat. See United States v. Wright-Darrisaw, 781 F.3d 35, 39 (2d Cir. 2015).

'Snitches Get Stiches'

In United States v. Mayfield, 2017 U.S. Dist. LEXIS 159938 (D.C. Nebraska, 2017), the day after defendant was released following his arrest for a gun sale to a confidential informant, he made a Facebook live video addressing his arrest, the underlying charges and the government's use of an informant, and made threats and urged others to hurt the informant. Defendant and an accomplice were thereafter indicted for witness tampering in violation of 18 U.S.C. §1512(a)(2)(A) in connection with the video. Defendant moved to dismiss the indictment arguing, among other matters, that his prosecution violated his First Amendment right to freedom of speech. He contended that his statements in the Facebook video were merely “hypothetical statements” and “rhetorical hyperbole” which are protected speech under the First Amendment. Further, he contended that his speech was not a true threat as he did not contact or intend to contact the informant, nor did he have the present ability to carry out the threats.

Conversely, the government argued that the defendant's statements were not protected speech, but were instead threats similar to the phrase, “snitches get stiches,” which other courts have found constituted threats sufficient to uphold convictions for witness tampering, 18 U.S.C. §1512(b)(1). See, e.g., United States v. Colhoff, 833 F.3d 980 (8th Cir. 2016). The court found that whether or not the phrase “snitches get stiches” constitutes a threat depends on the proper context. Such a determination, the court found, would require it to review the video, analyze the statements made by the defendant and consider evidence surrounding the circumstances and context under which the statements were made. Such determination similarly must be made by the ultimate trier of the facts, and accordingly, the court determined that without resolving the factual issues, a definitive ruling on the motion to dismiss was premature and should be referred to reassertion at trial.

In Colhoff, supra, defendant, charged with witness tampering, warned the government witness that “snitches get stiches” in the middle of a diatribe about Native Americans like the witness assisting the federal government in “divide and conquer” tactics. The defendant made this statement in a room with the witness while the trial was underway. Defendant implored the witness not to “turn against your own people” and to “just do the time.” The witness reported the statement to the police and his reaction was evidence supporting an inference that a threat was made. The court found that the phrase “snitches get stitches” may imply that violent reprisal should and would befall those who cooperate with law enforcement, and in the proper context, these words would cause a reasonable person who is cooperating with police to fear bodily harm. The court also determined that a true threat standard must be satisfied for a conviction based on the use of intimidation or a threat under §1512(b). The court found that from these facts, a jury reasonably could conclude that the defendant made a true threat that would place a reasonable person in fear of bodily harm, and that defendant intended to influence or prevent the witness from testifying at the trial and determined that the evidence was sufficient to support the conviction for witness tampering.

State Courts and Threatening Posts

The free speech clause of the First Amendment to the U.S. Constitution is made applicable to the states through the Due Process clause of the Fourteenth Amendment and protects most free expression of speech. Moreover, the New York Constitution protects free speech as provided in Article I, §8, thereof. In New York state, a person posting threatening statements may be subject to prosecution under New York State Penal Law §§240.30(1)(a) and/or 240.26(1), that is, Aggravated Harassment in the Second Degree, and/or Harassment in the Second Degree, among other charges. Aggravated Harassment in the Second Degree (Penal Law §240.30(1)(a)), in pertinent part provides:

[W]ith intent to harass another person, the actor … communicates, anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person's same family or household as defined in subdivision one of section 530.11 of the criminal procedure law, and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person's physical safety or property, or to the physical safety or property of a member of such person's same family or household.

Harassment in the Second Degree provides in pertinent part that a person is guilty of the charge when “with intent to harass, annoy or alarm another person: 1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same.”

Prohibitions on speech must be narrowly tailored to “fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct.” People v. Marquan, 24 N.Y.3d 1, 7 (2014). In People v. Dietze, 75 N.Y.2d 47 (1989), the Court of Appeals decided that defendant's statement that he would “beat the crap” out of the complainant some day or night on the street did not “fall within the scope of constitutionally proscribable expression.” Id. at 51. A true threat must be “clear, unambiguous and immediate.” People v. Orr, 47 Misc.3d 1213(A) (N.Y. Cty. Crim. Ct. 2015).

Vulgar and offensive speech alone does not substantiate a charge of Harassment in the Second Degree and does not fall within the zone of a true threat. See, e.g., People v. Chalupa, N.Y.L.J., Oct. 18, 2017, Dkt. #2017BX02193 (Bx. Co. 2017).

Last year in People v. DePasquale, 55 Misc.3d 1215 (A) (Kings Co. Crim. Ct., 2017, Petersen, J.), a case involving the sufficiency of an accusatory instrument, the factual allegations were that the defendant sent a text message to the informant that stated: “You ain't low and watch when I find you, come outside, leave the kid.” The informant stated that the text message caused her to fear imminent physical harm and to become alarmed. Nevertheless, the court determined that the statement was not a true threat: “[a]t best, the text message amounts to an unclear message, subject to varying interpretation.” The court further stated that the phrase, “watch when I find you” is not one that naturally tends to evoke immediate violence because it is unclear what is actually being threatened.” A true threat is “serious, should reasonably have been taken to be serious, or was confirmed by other words or acts showing that it was anything more than a crude outburst.”

Conclusion

Generally, the true threats doctrine requires that courts consider three factors in deciding whether speech is a true threat and not protected by the First Amendment: the language of the speech itself; the context in which the communication was made to determine if it would cause a reasonable person to construe it as a serious intention to inflict bodily harm; and whether the statement can be considered threatening or intimidating by the recipient. In a society which values the full measure of free speech and with multiple digital avenues available to all members of the public to express themselves to a large audience, there will be ever growing opportunity for the courts to further hone the parameters of the true threats doctrine.

Peter A. Crusco is Executive Assistant District Attorney, Investigations Division, Office of the Queens County District Attorney. The views expressed herein are the author's, and do not necessarily reflect the policies or views of the office.