Wednesday
Losing touch
Volokh has a good, long post up on how first amendment issues interact with laws that prohibit threats to kill the President. His analysis seems sound to me, but since he's a 1st Amendment scholar and I haven't studied it all, that's rather unsurprising. What I want to do is apply that analysis to a very similar (but fictional) example. Namely, the episode of West Wing (1.03 "A Proportional Response") where Congressman Bertram Coles (sp?) goes on the radio and says the following, "Folks down here are patriotic, fiercely patriotic. The President better not be planning on making any visits to this base, if he does he may not get out alive." Coles is the congressperson from a fictional district containing a fictional Air Force base, to which some funding has just been cut. According to Volokh, this statement would also be constitutionally protected. The speech has to have been both understood by the listeners to be "a true threat rather than hyperbole," and it must have been intended to place the victim in fear of harm. Coles' speech does not have either of these properties. It is inconsistent with the idea that it's a true threat that he made the statement on the radio and non-anonymously, since if he had any intention of acting on it and getting away with it, he wouldn't have done that. On the second prong, he wasn't even addressing the speech to the President, though he could be fairly certain he'd hear it. It seems that is not the kind of speech which is intended to make someone believe that the other person plans to harm them, and it certainly didn't have that effect on Pres. Bartlett.
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