Harmful Speech and True Threats: Virginia v. Black and the First Amendment in an Age of Terrorism

teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action") (quoting Noto v. United States, 367 U.S. 290, 297-98 (1961)); see Brannon, supra note 17, at 330 (promoting need to distinguish moral propriety of use of violent force from act of preparing and building courage of group to take such violent action). 105 538 U.S. 343 (2003). 106 Black, 538 U.S. at 360 (defining intimidation, a subset of true threat); see Brannon, supra note 17, at 336 (discussing Black's determination that intimidation can be prohibited); Schauer, supra note 102, at 203 (discussing intimidation's role in Justice O'Connor's Black decision). 107 Black, 538 U.S. at 360 (proving cross burning as within definition of intimidation); see Brannon, supra note 17, at 337 (noting Court's conclusion that Virginia statute fell within intimidation exception and therefore banning cross burning with intent to intimidate did not violate First Amendment); see also Schauer, supra note 102, at 203 (discussing Black's conclusion that it was permissible for Virginia to ban cross-burning due to its intimidating nature, a quality which First Amendment does not protect). ST JOHN'S JOURNAL OF LEGAL COMMENTARY [Vol. 20:2 The rationale used by judges and legal scholars in support of the true threats doctrine includes the detrimental effects such threats have on society and targeted individuals, coupled with the lack of discursive value provided by such intimidations. 108 In other words, the harms clearly and fully outweigh the benefits, if any benefits in fact exist. 109 The true threats' negative impacts consist of: the fear and apprehension the threat causes to the listener, the disruption provoked by said fear, and the costs of preventing, reducing or protecting against the threatened violence.110 Among such costs to the individual are the monies spent by the targeted individuals for safety measures, such as locked gates and security systems, and lost income due to reduced productivity caused by the distraction or fear for one's self or loved ones and psychological counseling."'1 Society also bears a costly burden in paying additional taxes on the federal, state and local level for such services as properly educating and training law enforcement officers and funding agencies for investigatory and precautionary purposes.112 All these detrimental costs and impacts on the individual and society must then be weighed against the alleged benefits of according true threats First Amendment immunity. It is argued, however, that there are no positives in allowing such threats within the definition of free speech, because they obliterate all discussion, debate and divergent views, thereby eliminating all of the 108 See Black, 538 U.S. at 360 (holding that prohibition on true threats serves to both protect individuals from fear of violence and from the disruption such fear engenders); see also Elrod, supra note 2, at 547, 550 (discussing negative impacts of true threats and little value of threats to cause bodily harm). 109 See Elrod, supra note 2, at 550 (quoting Professor Kent Greenawalt stating that "[s]ociety has a strong interest in providing people with a sense of security that their most basic rights will not be trampled upon" and that "[t]he threat that makes one feel vulnerable to just such a violation may properly be seen as an ancillary right to be secure in one's rights"); see also Black, 538 U.S. at 360 (citing rationale for true threats doctrine as harm that threats of violence are apt to cause, both on a personal level and on a more general level in terms of undermining the safety that citizens feel as members of society). 110 See Virginia v. Black, 538 U.S. 343, 360 (2003) (listing both fear and disruption fear engenders as rationale for true threats doctrine); see also Elrod, supra note 2, at 54748 (listing detrimental impacts on threatened individual). 111 See Elrod, supra note 2, at 548-49 (describing specific costs on individuals or groups of individuals whom are threatened); see also Alexander Tsesis, Hate Speech and Hate Crime: Regulating Intimidating Speech, 41 HARV. J. ON LEGIS. 389, 389 (2004) (discussing impact of hate speech in terms of undermining sense of safety in society). 112 See Elrod, supra note 2, at 549 (determining societal costs due to such threats); Tsesis, supra note 111, at 389 (concluding that hate speech "intentionally used to intimidate others can drastically undermine public safety and social welfare"). 548 2006] FiRSTAMENDMENTINANAGE OF TERRORISM 549 functions of the First Amendment.113 Therefore, there ought not to be a First Amendment concern in regulating true threats; in fact, it seems antithetical to the right to free speech's purposes of exchange of ideas, robust debate or discussions of political or social importance to allow for such true threats to go