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Threatening the President of the United States is a class D felony under United States Code Title 18, Section 871.[1][2] It consists of knowingly and willfully mailing or otherwise making "any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States." The United States Secret Service investigates suspected violations of this law and monitors those who have a history of threatening the President. Because the offense consists of pure speech, the courts have issued rulings attempting to balance the government's interest in protecting the President with free speech rights under the First Amendment to the Constitution of the United States. According to Stalking, Threatening, and Attacking Public Figures, "Hundreds of celebrity howlers threaten the President of the United States every year, sometimes because they disagree with his policies, but more often just because he is the President."[3]
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The first prosecutions under the statute occurred during the highly charged, hyperpatriotic years of World War I, and the decisions handed down by the courts in these early cases accordingly reflected intolerance for any words demonstrating even a vague spirit of disloyalty.[4][5] There was a relative moratarium on prosecutions until the World War II era. Prosecutions also increased during the turbulent Vietnam War era. Prosecutions under this statute have tended to fall when the country has not been directly embroiled in a national crisis situation.[6]
From 2,400 reported threats in 1965, the number rose to 12,800 in 1969.[7] According to some reports, President George W. Bush received about 3,000 threats a year, while his successor, Barack Obama, receives about four times that many.[8] This figure has been disputed by Secret Service Director Mark Sullivan, who claims that Obama receives about as many threats as the previous two Presidents.[9]
Convictions under 18 U.S.C. § 871 have been sustained for displaying posters urging passersby to "hang [President] Roosevelt";[10] for declaring that "President Wilson ought to be killed. It is a wonder some one has not done it already. If I had an opportunity, I would do it myself.";[11] and for declaring that "Wilson is a wooden-headed son of a bitch. I wish Wilson was in hell, and if I had the power I would put him there."[12]
In a 1971 interview, Groucho Marx told Flash magazine, "I think the only hope this country has is Nixon’s assassination." U.S. Attorney James L. Browning, Jr. opined, "It is one thing to say that 'I (or we) will kill Richard Nixon' when you are the leader of an organization which advocates killing people and overthrowing the Government; it is quite another to utter the words which are attributed to Mr. Marx, an alleged comedian." In July 2003, the Los Angeles Times published a Sunday editorial cartoon by conservative Michael Ramirez depicting a man pointing a gun at President Bush’s head. It was a takeoff on the 1969 Pulitzer Prize-winning photo that showed Vietnamese general Nguyễn Ngọc Loan executing a Viet Cong prisoner at point-blank range. The cartoon prompted a visit from the Secret Service, but no charges were filed.[13][14]
In 1996, pastor Rob Schenck told then President Bill Clinton, "God will hold you to account, Mr. President," referencing a recent veto of a ban on partial-birth abortions. The pastor was detained by Secret Service agents who, according to reports, accused him of threatening the President's life. [15]
In 2005, a teacher instructed her senior civics and economics class to take photographs to illustrate the rights contained in the United States Bill of Rights. One student "had taken a photo of George Bush out of a magazine and tacked the picture to a wall with a red thumb tack through his head. Then he made a thumb's-down sign with his own hand next to the President's picture, and he had a photo taken of that, and he pasted it on a poster." A Wal-Mart photo department employee reported it to police, and the Secret Service investigated.[16]
In September 2009 the Secret Service investigated Facebook polls asking whether President Barack Obama should be assassinated.[17] Some question has arisen as to how to handle Facebook groups such as "LETS KILL BUSH WITH SHOES" (a reference to the 2008 Muntadhar al-Zaidi shoe incident) which had 484 members as of September 2009.[18] Similar issues have arisen on MySpace.[19]
In 2010, a man was charged for posting a poem entitled "The Sniper" about the President's assassination on a white supremacist website.[20]
The offense is punishable by five years in prison,[1] a $250,000 fine,[21] a $100 special assessment,[22] and 3 years of supervised release.[23] Internet restrictions such as a prohibition on access to email have been imposed on offenders who made their threats by computer. The U.S. Sentencing Guidelines set a base offense level of 12 for sending threatening communication, but when a threat to the President is involved, a 6-level "official victim" enhancement applies. Moreover, "an upward departure may be warranted due to the potential disruption of the governmental function."[24] Further enhancements can apply if the offender evidenced an intent to carry out the threat (6-level enhancement), made more than two threats (2-level enhancement), caused substantial disruption of public, governmental, or business functions or services (4-level enhancement), or created a substantial risk of inciting others to harm federal officials (2-level enhancement).[25] Since each 6-level increase approximately doubles the Guidelines sentencing range, it is not particularly rare for an offender who threatens the President to receive a sentence at or near the maximum, especially if he has a criminal history and/or does not qualify for a reduction for acceptance of responsibility. There is a 4-level decrease available for a threat involving a "single instance evidencing little or no deliberation," which would usually apply to spur-of-the-moment verbal threats. The maximum penalty for threatening a United States judge or a Federal law enforcement officer is 10 years imprisonment, double the maximum penalty for threatening the President.[26]
The prototype for Section 871 was the 1351 British Statute of Treasons which made it a crime to "compass and imagine the death of the King."[27] The statute prohibiting threats against the President was enacted by Congress in 1917. The maximum fine it allowed was $1,000. The law was amended in 1994 to increase the maximum fine to $250,000.[28]
Among the justifications that have been given for the statute are that threats against the President stimulate opposition to national policies, however wise, even in most critical times; incite the hostile and evil-minded to take the President's life; add to the expense of the President's safeguarding; are an affront to all loyal and right-thinking persons; inflame their minds; provoke resentment, disorder, and violence; are akin to treason; are rightly denounced as a crime against the people as sovereign power;[11] and disrupt Presidential activity and movement.[29][30][31] Congressman Edwin Y. Webb noted, "That is one reason why we want this statute — in order to decrease the possibility of actual assault by punishing threats to commit an assault...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."[32]
Prisoners are sometimes charged for threatening the President, despite the fact that they lack the ability to personally carry out such a threat. The courts have upheld such convictions,[33] reasoning that actual ability to carry out the threat is not an element of the offense, and that even prisoners are able to make a true threat against the President, because a prisoner could carry out the threat by directing people on the outside to harm the President. Sometimes prisoners make threats against the President in order to manipulate the system; e.g., a case arose in which an inmate claiming to be "institutionalized" threatened the President in order to stay in prison, and there was a case in which a state prisoner threatened the President because he wanted to go to a federal institution.[34]
There has been some controversy among the federal appellate courts as to how the term "willfully" should be interpreted. Traditional legal interpretations of the term are reflected by Black's Law Dictionary's definition, which includes descriptions such as "malicious, done with evil intent, or with a bad motive or purpose." In particular, the U.S. Court of Appeals for the Fourth Circuit, in U.S. v. Patillo, held that a threat to the President could lead to a verdict of guilty "only if made with the present intention to do injury to the President."[7][29] Specifically, the court opined that "The word [willfully] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose...We believe that a 'bad purpose' assumes even more than its usual importance in a criminal prosecution based upon the bare utterance of words."[35]
Most of the other circuits have held that it is not necessary that the threat be intended to be communicated to the President or that it have tendency to influence his action.[5] The legislative history, which contains debate over a rejected amendment that would have eliminated the words "knowingly and willfully" from the statute, reflects that the word "willfully" was included in order to avoid criminalizing behavior carried out with innocent intent (e.g. mailing to a friend, for informational purposes, a newspaper article containing a threat to the President). The U.S. Court of Appeals for the Seventh Circuit held that a threat was knowingly made if the maker comprehended the meaning of the words uttered by him, and it was willingly made, if in addition to comprehending the meaning of his words, the maker voluntarily and intentionally uttered them as a declaration of apparent determination to carry them into execution.[36]
In the case of Watts v. United States, the United States Supreme Court ruled that mere political hyperbole must be distinguished from true threats. At a public rally, a member of the group suggested that the young people present should get more education before expressing their views. The defendant, an 18-year-old, replied:
| “ | They always holler at us to get an education. And now 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. | ” |
According to court testimony, the defendant in speaking made a gesture as if sighting down the barrel of a rifle. The audience responded with laughter and applause, which the Court of Appeals would later view as potentially ominous: "[I]t 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. Even earlier, the Roman holidays celebrated in the Colosseum often were punctuated by cheers and laughter when the Emperor gestured 'thumbs down' on a fallen gladiator."[37]
The boy was arrested and found to be in possession of cannabis, but a Court of General Sessions Judge suppressed the cannabis because he found that there had been no probable cause for the Secret Service agents to believe the defendant's words constituted a threat to the President.[37] This did not prevent a federal court from convicting him for threatening the President. The United States Court of Appeals for the District of Columbia Circuit affirmed his conviction, but the Supreme Court reversed, stating, "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." In a concurring opinion, William O. Douglas noted, "The Alien and Sedition Laws constituted one of our sorriest chapters; and I had thought we had done with them forever...Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution."[38]
Courts have held that if a person is guilty of the offense if he intentionally makes a threat in a context and under such circumstances that a reasonable person would foresee that the statement would be interpreted by persons hearing or reading it as a serious expression of an intention to harm the President, and that the statement was not the result of mistake, duress or coercion.[39][40][41][42][43][44] A true threat is a serious threat and not words uttered as a mere political argument, idle talk or jest.[45] The standard defining a true threat does not require actual subjective intent to carry out the threat.[46]
A defendant's statement that if he got the chance he would harm the President is a threat; merely because a threat has been conditional upon the ability of the defendant to carry it out does not render it any less of a threat.[4] It has been ruled that taken together, envelopes containing ambiguous messages, white powder, and cigarette butts that were mailed to the President after the 9/11 anthrax outbreaks clearly conveyed a threatening message.[47] Indeed, the sending of non-toxic white powder alone to the President has been deemed to be a threat.[48] Nor does a broad statement that the President must "see truth" and "uphold Constitution" or else the letter writer will put a bullet in his head count as being expressly conditional as it does not indicate what events or circumstances will prevent the threat from being carried out.[49] However, a statement that "if I got hold of President Wilson, I would shoot him," was not an indictable offense since the conditional threat was ambiguous as to whether it was an expression of present or past intent.[50]
The posting of a paper in a public place with a statement that it would be an acceptable sacrifice to God to kill an unjust President was ruled to not be in violation of the statute.[51] The statute also does not penalize imagining, wishing, or hoping that the act of killing the President will be committed by someone else.[52] On the other hand, the mailing of letters depicting the President's head impaled on a stake and dripping blood and containing the words "kill Reagan" was considered a serious threat.[53] An oral threat against the President, unheard by anyone, does not constitute a threat denounced by statute.[5]
Since other statutes make it a crime to assault or to attempt to kill the President, some question has arisen as to whether it is also necessary to have a statute banning threats. As Georgetown Law Journal notes, "it can be argued that the punishment of an attempt against the life of the President is not sufficient; by the time all the elements of an attempt have come into existence the risk to the President becomes too great. On the other hand, the punishment of conduct short of an attempt runs the risk of violating the established principle that intent alone is not punishable...While ordinarily mere preparation to commit an offense is not punishable, an exception may perhaps be justified by the seriousness of the consequences of an executed threat on the President's life."[6]
The Secret Service notes, "These are probably Secret Service's most serious cases because it must be determined whether the person making the threat really wants to hurt [Secret Service protectees] or whether they may have some medical problems of their own, for which they need help."[54] Indeed, it is not uncommon for judges to order psychological evaluations of defendants charged under this statute, in accordance with United States federal laws governing offenders with mental diseases or defects. Psychiatrists divide people who threaten the President into three classes. Class 1 includes persons who have expressed overt threatening statements but have made no overt action, Class 2 comprises individuals who have a history of assaultive behaviors toward authority figures, and individuals in class 3 are considered dangerous and typically have been federally prosecuted under Section 871.[55]
Dilemmas related to patient confidentiality sometimes arise when a mentally ill subject makes a threat against the President. The termination of nurse Linda Portnoy was upheld after she reported such a statement to the Secret Service. The court noted that the patient was restrained and unable to act on his threats, so he wasn't an immediate safety risk. It also considered the patient's psychiatrist, not Portnoy, the appropriate person to assess the gravity of his threats.[56] A study found that in those who threaten the President, the primary differentiating variable related to lethality was "opportunity and happenstance".[57] On the other hand, a defendant's threats of harm, written in his anger management workbook, threatening to kill the President upon the defendant's release from the penitentiary, were ruled to have fallen within the dangerous patient exception to psychotherapist-patient privilege.[58]
Federal law provides that the director of the facility in which a person is hospitalized due to being found incompetent to stand trial or not guilty only by reason of insanity of a violation of Section 871 shall prepare annual or semiannual reports concerning the mental condition of the person and containing recommendations concerning the need for his continued hospitalization, and that a copy of the reports shall be submitted to the Director of the United States Secret Service to assist it in carrying out its protective duties.[59]
The Ninth Circuit has ruled that it is constitutional to hold a presidential threatener beyond the five year statutory maximum prescribed by Section 871 if he is found to be dangerous and mentally ill. Indeed, under federal law, it is possible to hold some presidential threateners indefinitely.[60]
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