At a rally in Wilmington, North Carolina, after warning the crowd that his rival, Hillary Clinton, planned to abolish the constitutional right to keep and bear arms, Republican candidate Donald Trump appeared to threaten Hillary Clinton’s life if she’s elected president:
Hillary wants to abolish -- essentially abolish -- the Second Amendment. By the way, and if she gets to pick—if she gets to pick her [Supreme Court] judges, nothing you can do, folks, Although the Second Amendment people, maybe there is, I don’t know.
Trump’s rhetoric is frequently violent. He’s threatened protesters at rallies and encouraged chants of “Lock her up!” directed at Clinton. But since most people who drop the slightest hint of violence toward the president wind up in jail, this time the question in the air was, “Did Trump’s call for ‘Second Amendment solutions’ actually break the law?”
Always ready to jump into damage control mode, the Trump campaign insisted there was no threat: Trump wasn’t calling on gun owners to attack a president, he was talking about “the power of unification,” the fact that Second Amendment supporters are a large voting bloc who would make their views known at the ballot box.
That interpretation seemed a stretch, since Trump's words refer to what "Second Amendment people" could do after the election, but whatever. Say, for the sake of argument, that Trump was actually suggesting assassination, would that violate the presidential threat law? According to the Supreme Court, that depends.
The presidential threat law, 18 USC § 871, makes it a crime to knowingly and willfully threaten “to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States.” It was passed in 1916 and later expanded to include the vice president, the president-elect, and others in the presidential line of succession.
The legislation was motivated in part by the assassinations of three presidents, Lincoln, Garfield, and McKinley, and by a failed attempt to kill Theodore Roosevelt while he was a Progressive Party candidate in 1912. Its sponsor, Rep. Edwin Webb, of North Carolina, argued that the law would “decrease the possibility of an actual assault by punishing threats to commit an assault,” and it would prevent such threats from inciting others to do so:
A bad man can make a public threat, and put somebody else up to committing a crime against the Chief Executive, and that is where the harm comes. The man who makes the threat is not himself very dangerous, but he is liable to put devilment in the mind of some poor fellow who does try to harm him. [53 Congressional Record 9377-79, 1916]
Webb insisted that the speaker’s intent is crucial, and that idle threats are not to be treated the same way as serious ones:
I think it must be a willful intent to do serious injury to the President. . . . I do not think we ought to be too anxious to convict a man who does a thing thoughtlessly. I think it ought to be a willful expression of an intent to carry out a threat against the Executive.
Does that mean we have to believe what Trump’s handlers say he meant about “the Second Amendment people”? Maybe. At first, courts automatically convicted anyone whose words suggested harm to the president, even when there was little likelihood those threats would be carried out. In 1918, a man named Clark was found guilty for saying,
I wish [President Woodrow] Wilson was in hell, and if I had the power I would put him there. [Clark v. United States, 250 F. 449 (5th Cir. 1918)]
And in the same year, Walter Ragansky, who claimed he was "only kidding," was convicted for saying,
We ought to make the biggest bomb in the world and take it down to the White House and put it in the dome and blow up President Wilson and all the rest of the crooks, and get President Wilson and all the rest of the crooks and blow it up. . . . I can make bombs and I will make bombs and blow up the President. Ragansky v. United States [253 F. 643 (7th Cir. 1918)]
Although these World War I-era cases occurred during a time when freedom of speech was regularly suspended, threats have never been considered protected speech. In 1969, in Watts v. United States (394 U.S. 705), the Supreme Court affirmed the constitutionality of the presidential threat law and placed “true threats” clearly outside the protection of the First Amendment. But the Watts court also ruled that a true threat could not be determined without considering the context in which it was made.
Here’s what happened. In August, 1966, Robert Maxwell Watts, an 18-year-old New York City high school senior and Harlem civil rights worker, was arrested for threatening the life of president Lyndon Baines Johnson. The incident occurred during a small rally organized by the W.E.B. DuBois Club at the Washington Monument. At one point, the 30-40 people present broke up into small discussion groups, and Watts told the group focusing on police brutality that he didn’t intend to go to Vietnam:
I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. . . . They are not going to make me kill my black brothers.
Law enforcement was there to take notes and take names. The next day, one of the observers, Park Police Sgt. Harold Shoemaker, informed Secret Service agents, who arrested Watts at the Washington Monument.
According to Joseph Forer, Watts’s attorney, Shoemaker acknowledged that many in the group laughed when Watts spoke:
I don’t think the officer took it very seriously. If he really thought the young man really threatened the President, it would have been unforgivable for him to wait a day to report it.
At the trial, an investigator for the Army Counter Intelligence Corps testified that he witnessed Watts’s threat against the president. A reporter for the Milwaukee Sentinel added that Watts said, “rather than looking down the barrel of a rifle to kill Vietnamese people he would rather look down a rifle aimed at the President.”
Watts was convicted and sentenced to four years probation. That sentence was upheld in a two-to-one decision by a panel of the Court of Appeals for the District of Columbia (Watts v. United States, 402 F.2d 676 [D.C. Cir. 1968]). Writing for the appeals court, Judge Warren Burger, who three years later became Chief Justice of the United States, rejected both of the defense’s key arguments: that Watts didn’t intend to carry out his threat, and that his hyperbolic statement was protected by the First Amendment. Burger found that the goal of the presidential threat law was to deter attacks both by the speaker making such threats and by any who hear or read them, “including those less stable than the speaker and perhaps more suggestible” (Watts 1968, 678).
Burger dismissed the speaker’s intent as a non-issue: regardless of intent, any threat against the president, even a nonserious one, must be taken seriously by the security services, as any threat, serious or frivolous, limits the ability of presidents to do their job. Hyperbole is no excuse. Neither is “just kidding.” Citing the chilling example of the Holocaust, Burger also dismissed Watts’s defense that the audience greeted his words with laughter and applause:
It has not been unknown for laughter and applause to have sinister implications for the safety of others. History records that applause and laughter frequently greeted Hitler's predictions of the future of the German Jews.
And Burger rejected Watts’s First Amendment defense because the importance of keeping the president safe impacts not just one person, but the entire nation, and so outweighs an individual’s right to speak.
But James Skelly Wright, a judge with a strong commitment to social justice, argued in his dissent that since Watts was engaged in political speech, that context must be considered before classifying his words as threats:
Where an utterance does convey an idea, particularly an idea about how public affairs should be conducted, the label “threat” does not preclude First Amendment protection any more than do the labels “obscenity” . . . or “libel.”
As for the laughter and applause that greeted Watts’s statement, Wright dismissed Burger’s analogy to Nazi mobs:
It is much more reasonable to interpret it as indicating that the words which evoked it were taken in context by their hearers to be hyperbolic emphasis of a political view which they supported.
In conclusion, Wright would apply a strict notion of criminal intent, as well as a clear and present danger test, before convicting Watts and abridging his First Amendment protections:
Appellant’s words, taken in their context, are most readily susceptible to the interpretation that they were a crude, even offensive, rhetorical device. They cannot be read unambiguously as a serious threat against the President.
Watts then appealed to the Supreme Court, and in a five-to-one per curiam decision, the Court, led by Chief Justice Earl Warren, reversed Watts’s conviction, agreeing in large part with Judge Wright’s dissent (Watts v. United States 394 U.S. 705 [1969]).
The Court found that Watts’s statement was a “very crude offensive method of stating a political opposition to the President.” In his concurrence, Justice William O. Douglas took Judge Wright’s reasoning further, comparing the threats against the president act with the much-reviled Alien and Sedition laws of the early republic and noting that many early convictions under the statute emphasized, not an actual threat to a president, but political dissent treated as treasonduring wartime.
Although the Watts court found threats to be unprotected speech, it also stressed the need to examine both the context and the words of the accused, in order to distinguish “true threats” from protected speech:
A statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.
The Court found in Watts not a true threat, but protected political speech. Like threats, such speech can get nasty, but nastiness in and of itself doesn’t make the words a threat:
The language of the political arena . . . is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.
Although it has consistently placed threats outside the protection of the First Amendment, the Supreme Court has never defined true threats or even specified the level of intent—or willfulness, as it is called in the presidential threat law—necessary for a conviction.
Given the political context of Trump’s “Second Amendment solutions” innuendo, it would be easy to compare his words to those of young Robert Watts 50 years ago: crude political hyperbole protected by the First Amendment.
But it would just as easy to compare them to the words of Henry II. In 1170, the English King said of his arch-rival Thomas à Beckett, “Will no one rid me of this meddlesome priest?”—or words to that effect. Hearing this, a group of Henry’s supporters rushed to Canterbury and murdered the archbishop in the cathedral. Even though he denied issuing a direct order, Henry wound up doing public penance for Becket’s murder, and the martyred Becket became a saint.
Keeping in mind Warren Burger’s warning about the potential of violent speech to rouse to action “those less stable than the speaker and perhaps more suggestible,” and remembering that protestors have been getting roughed up by Trump supporters with some degree of regularity, it’s hard to dismiss the technically legal but certainly intemperate incitement potential of Trump’s ominous talk of what another failed political candidate, suggesting her opponent should be shot, called "Second Amendment remedies." Unless, of course, Trump wasn’t kidding.
