The God squad group, mainly made of boys in junior and senior years, uses the 9/11 attacks as a rallying point for combination of white supremacist, racist, anti-Semitic, ant-Islamic, anti-immigrant, ant-gay, nee-fascist dogma mixed with a good dose of anti-abortion and fundamentalist Christian diatribe. The group catches the attention of the administration when they show up at school all wearing their uniforms and distributes the first edition of their weekly "newsletter". The” newsletter” contains highly offensive diatribes on how it is the "the duty of all true Americans to fight against the forces trying to destroy our country". The writings are laced with white supremacist, racist, anti-Semitic, ant-Islamic, anti-immigrant, ant-gay, nee-fascist, anti-abortion and fundamentalist Christian dogma. While they don’t directly incite violence against these identified enemies of America, they strongly imply an impending threat of violence against these groups by the God Squad who are "marshalling their weapons and preparing for battle".
The group defies the principal’s ban on God Squad activities on campus. In defiance, the group cites the protection of their rights of speech and expression in the First Amendment The group is arrested and charged with trespassing, disturbing peace and inciting riot. The core legal issues in the case include the freedom of speech and expression enshrined in the First Amendment. This paper argues that the said rights are not absolute and are limited under the doctrine of “true threat”. As such, the paper will review the jurisprudence of the First Amendment vis-à-vis the jurisprudence of the doctrine of true threat through various legal presidencies. Of particular importance, to this paper are the controversial issues surrounding the doctrine of true threat. The historical background of the First Amendment and the doctrine of true threat will be considered first.
The first amendment to the constitution of the United States of America states that “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.” In a nutshell, the first amendment gives American citizens the right to freedom of belief, expression, association, assembly and mass action for redress of perceived ills. Basically the spirit of the first amendment was to enshrine the principles of truth, democracy and self-determination into the American society (Barkai 2012). As such, the First Amendment is an embodiment of the American values thus the aspects of free speech as used in political, social, academic and business circles has profound patriotic sentiment, particularly when breached (Petraro 2006). However, thus fundamental law has for decades been shrouded with controversies, particularly after the introduction of the USA PATRIOT Act following the 9/11 attacks (Panetta 2005). The Act gave the government sweeping powers to spy on citizen and to prosecute suspected terrorists. The Act has been criticized by some scholars as an infringement of the freedoms enshrined in the First Amendment while the proponents argue that it was a necessary tool, in the face of unprecedented national threat, for the government to fight terrorist threats (Kagan 1996; Whitehead and Aden 2002; Panetta 2005; Strossen 2009; Extremism and Radicalization Branch 2009).
While the controversy surrounding the First Amendment is mainly on the government’s infringement of the citizens rights there are many cases of citizens infringing on the rights of other citizens. History has many incidences of a conflict of individuals’ rights and those of institutions, organizations and authorities. On the overall there have been many debates on the jurisprudence and the scope of First Amendment vis-à-vis other legal provisions such as the doctrine of true threat. The dichotomy between the freedom of speech and true threat is therefore the main subject of this case (Rothman 2001). The questions have been raised on what speech should be protected and whether terrorist threats and threatening speech falls within the scope and jurisprudence of the First Amendment. On one side of the controversy are those who argue that the freedom of speech (even what may be considered threat) is a fundamental right that should be protected at all cost. On the other hand there are those who argue that the risks associated with threats outweigh the social and constitutional values and therefore should be regulated (Petraro 2006). In deed there is need to be checks and balance to the freedoms enshrined in the First Amendments to avoid the society deteriorating to anarchy in the name of civil rights and liberties. The true threat doctrine provides a basis exceptions to the protectionism of the First Amendment (Strasser 2010).the doctrine empowers the state to limit behavior, speech and gestures that cause fear and intimidation of the listener
According Justice O’Connor true threat entails “statements where the speaker(s) expresses an intention to commit violence against a person or group, whether s/he intends to carry out the threat” (Crane 2006). The greatest and perennial source of controversy regarding the jurisprudence of the doctrine of true threat has been the definition of true threat and particularly the place of intention and the prosecution’s burden to prove intention. Though the court first defined true threat in Virginia V. Black it left out many questions. The Supreme Court has been blamed for not clearly defining the parameters and limits of the doctrine, leaving the lower courts to struggle with issues of the jurisprudence of both the true threat doctrine and the First Amendment. As will be seen in the next section, the hopeless confusion has seen courts make radically different rulings in similar cases. Suffice to say; striking a balance between the First Amendment and the true threat doctrine is critical in affording sufficient protection to the society and individual interests. It even becomes murkier when the issues of advocacy, demonstrations and protests come into play (Strasser 2010). This is the case with this particular.
- Legal precedents
- Brandenburg V. Ohio
This was a long and protracted case in which Brandenburg, a Ku Klux clan leader, was accused of incitement. Brandenburg held a televised rally in which he made offensive statements against the federal government, the Jews and the black Americans. Though he stated in the statement that his was not a revenge group, he intimated a possible revenge if the three arms of government continued suppressing white Caucasians. The prosecution’s case was hinged on the implied vengeance and the derogatory statements against the Jews and black Americans. The court, in its ruling argued that revenge was not necessary violent and that in a political context vengeance could mean voting against the incumbent. With regards to the derogatory statements the courts relied on the precedent set by the Noto v. United States case. In the case the courts had ruled that “mere abstract teaching on how moral necessity could resort to violence was not equivalent to preparing a group for criminal acts of violence”. As such, the Ohio court considered the anti-Jews and anti-negroes statements to be mere abstract statements rather than incitement to violence. The court in this case focused on the protection of the freedom of speech and expression rather than the threatening aspects of the case.
- Watts v. the United States
The court first convicted Robert Watts for knowingly and willfully threatening the life of the president. Robert Watts had refused to go to war and declared that if forced to go the first man he would kill would be the president of the United States. The defense argued that Watts had no intentions of carrying out the threat but was just making jest. The defense appealed for a review of the conviction by the DC circuit, in which ruling judges disagreed on whether the prosecution needed to prove the intention to make and carry out the threat or not. The majority held that the fact that the threat was made knowingly and willfully absolved the prosecution from the burden of proofing the intention. The dissenting judge, Skelly Wright, agreed with the defense that mere jest does not constitute harmful speech and the prosecution needed to prove true threat in terms of the intention. Ruling on the same case, the Supreme Court declared that the lower courts had misinterpreted the relevant statute. The Court agreed with Judge Wright’s position that the prosecution ought to have proof of intention. The Supreme Court relied on the fact that the statement was made in a political debate, the alleged threat was conditional and that it had caused the listeners to laugh rather than harm them.
- Chaplinsky V. New Hampshire
In this case the court gave clear guidelines on what fell in the scope of free speech and thus the First Amendment. The court ruled that “there are specific instances where free speech is limited, preventable and punishable”. According to the ruling, statements that inflict harm and incite immediate breach of peace were outside the scope of the First Amendment. Such cases are where fighting words, obscenity and libel are used. The courts ruled such instances as cases of true threat that was outside the jurisprudence of the First Amendment. In the ruling the court declared that “true threat was more of physical action than communication of ideas and emotions”. In effect the court was saying that threats should be considered as actions of violence rather than a mere emotional outburst.
In concluding this section, there are many other contradicting decisions regarding the First Amendment vis-à-vis the true threat doctrine. However, the scope of the paper can only allow coverage of a few. Suffice to say each case should be considered on individual merit. The rights of an individual or a group should by no means infringe on the rights of others.
The argument made by this paper is for the defense i.e. the county school district and the high school principal. The premise of the argument is the true threat doctrine. While many may argue that true threat threatens the First Amendment, it’s vital to consider that the constitution protects all the citizens i.e. the speakers and the listeners. The Supreme Court has held that “true threats” do not fall under the protection of the First Amendment. This ruling is based on four (some sources give three) justifications, namely:
- The need to protect the listeners from the fear of the impending threat
- The need to prevent any disruption associated with the fear
- The need to prevent the occurrence of the threatened violence
- The need to prevent people being forced to act against their will.
In this particular case the words in the manifesto and the newsletters of the God Squad inflicted immediate fear on both the listeners and their parents resulting in an outcry that caught the attention of the principal. In fact, it is the fear of imminent violence that pushed the principal to impose a ban against the activities of this group. Based on this premise the statements of the God Squad were true threats and did not fall under the protection of the First Amendment. Following the ban the group held a rally, against the stipulation of the ban, which attracted large crowed of students resulting in a shouting contest that became aggressive and moved towards violence. This was not only a disruption of the activities of the school but of peace as well. It is therefore imperative that the Squad be charged and convicted to arrest the possibility of violent confrontation. The group also stated clearly that it was the duty of all Americans to “fight against the forces trying to destroy America". This was not only and incitement to violence but also coerced other citizens to act against their will. In as much as the citizenry must remain vigilant in the face of national security threat, they must respect the civil rights of others. The vigilance of the Squad was therefore infringing on the civil rights of other students and Americans that were not members of the squad. As such, the behavior of the group can not fall under the protection of the First Amendment.
Additionally, words that are likely to cause danger, incitement to riot, incitement and general intent to breach the peace, obscenity and fighting fall outside the parameters of free speech and hence the scope of the first Amendment. As earlier mentioned, this was applied in the case of Chaplinsky v. New Hampshire. Clearly the statements of the God Squad fall within one or more of the aforementioned category and do not require forensic science to prove. With regard to trespass, the principal had already expelled the Squad by the time of the arrest and thus they were not welcome into the compound. The schools have been empowered by the courts, especially after the numerous high school shootings in the late nineties, to suppress and regulate speech where it promotes illegality and threatens substantial disruption of peace. As such, the school principle was within his legal mandate and right to ban the activities of the squad and to expel them when they defied the rule.
It is vital to note that the God Squad encouraged violence and discrimination of all races and groups other than the white Caucasian. This goes against the very foundation of America as enshrined by the founding fathers in the declaration of independence. In the declaration all humans are equal before God and the Law. The racism sentiments also go against the Fourteenth Amendment that guaranteed the equality of American citizens regardless of sex, race, religion or creed.
In conclusion, despite the raging debate on the freedoms guaranteed in the First Amendment, the rights must be exercised without infringing on the rights of others. The said freedoms are not absolute and are regulated based on the doctrine of true threat. In other words the First Amendment does not afford protection where there is true threat.
Extremism and Radicalization Branch. Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment. Washington, Dc: Department of Homeland Security, 2009.
Abrams, Floyd. "The First Amendment and the war against terrorism." Journal of constitutional Law 5, no. 1 (2002): 1-11.
Baer, Judith A. Equality under the Constitution . Ithaca: Cornell University Press, 1983.
Barkai, Yotam. "The child paradox in the First Amendment." New York University Law Review Vol. 87, 2012: 1414-1451.
Bureau of Justice Assistance; U.S Department of Justice. Investigating Terrorism and Criminal Extremism—Terms and Concepts. Tallahassee: Institute for Intergovernmental Research, 2009.
Cohen, Carl. "Free speech and political etremism: How nasty are we free to be?" Law and Phylosophy, 1989: 263-279.
Committee on Homeland Security. Violent Extremism: How are people moved from constitutionally-protected thought to acts of terrorism? Hearing before the subcommettee on intelligence, information sharing and terrorism risk assesment, Wasshington Dc,: U.S. Government Printing office, 2011.
Crane, Paul T. "True Threats” and the Issue of Intent ." Virginia Law Review , 2006: 1225-1277.
Kagan, Elena. "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine." The University of Chicago Law Review 63, no. 2 (1996): 413-517.
Panetta, Toni. "The USA PATRIOT Act ." Review Digest: Human rights and the war on terror, 2005: 163-183.
Petraro, Nina. "Harmful speech and trues threats: Virginia V. Black and the First Amendment in an age of terrorism." ST. John’s Journal of legal commentary 20, no. 2 (2006): 531-563.
Rothman, Jennifer E. "Freedom of speech and True threats." Harvard Journal of Law & Public Policy 25, no. 1 (2001).
Stanner, Andrew P. "Toward an Improved True Threat Doctrine for Student Speakers." New York University L Review 81, no. 1 (2006): 385-416.
Strasser, Mark. "Advocacy, True Threats, and the First Amendment." Selected Works, 2010: 1-43.
Strossen, Nadine. "The Regulation of Extremist Speech in the Era of Mass Digital Communications: Is Brandenburg Tolerance Obsolete in the terrorist era?" Peperdine Law review 36, no. 2 (2009): 361-374.
Weiss, Lori. "Is the True Threats Doctrine Threatening the First Amendment? Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalitiion of Life Activists Signals the Need To Remedy an Inadequate Doctrine." Fordham Law Reveiw 72, no. 4 (2004): 1283-1340.
Whitehead, John W, and Steven H Aden. "Forfeiting "Enduring Freedom" for "Homeland Security": A Constitutional Analysis of the USAPatriot Act and the Justice Department's Anti-Terrorism Initiatives." American University Law review 51, no. 6 (2002): 1081-1133.