Aug. 15, 2012 – The report¹ that Wade Michael Page, the deadly shooter in Oak Creek, had previously recorded white supremacist music lyrics raises, once again, the legal question of whether law enforcement officers can take preventive action against such persons before they act, based solely on words and other expressions showing intent to harm others.

In other words, does the First Amendment right of free speech mean that law enforcement officers must wait for a person to actually act?

The courts have consistently held that “true threats” fall outside the protections of the First Amendment. What constitutes a true threat, however, has not always been clear. Here are four cases that run the gamut of the courts’ potential analysis.

1) United States v. Watts, 394 U.S. 705 (1969). Robert Watts was at a Vietnam War protest when he announced to people in the crowd: “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” – the then-President of the United States. An Army investigator overheard his statement. Watts was criminally charged with threatening the life of the President and convicted by a jury.

When the U.S. Supreme Court heard his appeal, Watts’ criminal conviction was reversed as a violation of the First Amendment. The Court held Watts’ statement was not a “true threat” but instead was a “very crude offensive method of stating a political opposition to the President.” As a result, the statement was protected speech and could not result in a criminal conviction.

2) United States v. Parr, 545 F.3d 491 (7th Cir. 2008). While in jail on a drug charge, Steven Parr described to his cellmate an elaborate plan to blow up the Reuss Federal Plaza in Milwaukee. Parr explained that he hoped the explosion would not only kill federal ATF agents, but also start a revolution in the country. The cellmate reported the conversation to authorities, who then secretly recorded Parr repeating his plan, including Parr’s description of his knowledge about making large-scale explosives. Parr subsequently was charged with threatening to blow up a federal building and was convicted by a jury.

On appeal, in a decision authored by Judge Diane Sykes, the Seventh Circuit Court of Appeals held that Parr’s statements were a true threat falling outside the protection of the First Amendment. Judge Sykes wrote that a true threat was a “serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” She held that the jury properly found that Parr’s statement met this standard.

3) United States v. Rahman, 189 F.3d 88 (2nd Cir. 1999). Sheik Omar Abdel-Rahman, otherwise known as the “Blind Sheik,” was an Islamic scholar and cleric who gave speeches stating that followers must take up a violent jihad against the United States and others. Several of those followers then planned and undertook violent acts, including offering assistance to participants in the first bombing of the World Trade Center in 1993. Abdel-Rahman was charged with conspiracy to commit murder and other offenses. He was convicted by a jury after a six-month trial.

On appeal before the Second Circuit Court of Appeals, Abdel-Rahman argued, in part, that his speeches were protected by the First Amendment. The court rejected this argument, pointing out that numerous federal statutes can be violated by speech alone. Moreover, the court said, Abdel-Rahman’s words went beyond the expression of ideas and included direct advocacy of violence to those involved in the illegal acts. The court said the fact that his speeches carried a religious overtone did not make him immune from prosecution.

4) Korematsu v. United States, 324 U.S. 885 (1944). Korematsu remains one of the most infamous cases in U.S. history. During World War II, the U.S. Supreme Court upheld the forced relocation and confinement of American citizens of Japanese descent. The majority decision stressed the need to defer to the military, which feared the threat of sabotage. Toyosaburo Korematsu, who had not said or done anything to suggest a threat to the United States, much less disloyalty, refused to abide by the Army orders to relocate. He was convicted and confined.

The dissenting opinions at the Supreme Court noted that the case rested on racism, pure and simple. Kormematsu and others were being held not because of words or deeds, but because of ancestry. Justice Murphy, in particular, wrote that there was simply no evidence of an immediate, imminent or impending danger caused by these citizens.

The words of Wade Michael Page: Before his shooting rampage at the Sikh temple, Page reportedly performed songs that included the lyrics: “Now I’m on the warpath … Gonna be a bloodbath.”² There is no indication that law enforcement officers were aware of Page and his lyrics before the shooting. Had they known, however, the legal question would then have been whether the lyrics themselves evidenced a true threat – subjecting Page to criminal prosecution before he acted.

About the Author

Steven M. Biskupic, Marquette 1987, was United States Attorney for the Eastern District of Wisconsin from 2002 to 2009. He is now a partner at Michael Best & Friedrich, Milwaukee.

Endnotes

¹ Johnson, “Former white supremacist haunted by a world he once knew,” JSOnline, (Aug. 7, 2012).

² Id.