David L. Hudson Jr.: Federal appeals court considers Facebook posts a true threat

  One of the more intriguing lines in First Amendment jurisprudence is between a true threat and political hyperbole. True threats are a categorical exception to free-speech protection, while political hyperbole generally is protected speech.

  A Wisconsin man learned the hard way that posting incendiary messages on Facebook about killing then-President Barack Obama can fall into the unprotected category of true threats.

  In June 2015, Brian Dutcher posted on Facebook: “Thursday I will be in LaCrosee, hopefully, I will get a clear shot at the president. Killing him is our CONSTITUTIONAL DUTY.” Another post read:  “I have been praying on going to D.C. for 3 months and now the usurper is coming HERE. … pray for me to succeed I my mission.”

  President Obama was scheduled to speak in La Crosse on July 2, 2015. Dutcher later went to the La Crosse Public Library where he proceeded to tell a security guard that “I’m here to kill the President, the usurper, tomorrow at his speech.” The security guard, who knew Dutcher, reported the statements to his superior.

  This lead to questioning from the Secret Service, where Dutcher again boasted that he could kill the President with his slingshot. After a one-night stay at a hospital for a mental evaluation, authorities arrested Dutcher for threatening to kill the President.

  A jury found him guilty and the district court sentenced him to 36 months imprisonment and three years of supervised release.

  On appeal, Dutcher contends that he merely engaged in overheated rhetoric. He argued that he did not actually intend to kill the President, as evidenced by the fact that the only weapon on his person was a slingshot.

  However, a three-judge panel of the 7th U.S. Circuit Court of Appeals affirmed his conviction in United States v. Dutcher. Writing for the majority, Judge Dianne Wood recognized that the federal law outlawing threats against the President “does not criminalize offensive jokes or political hyperbole — bad taste, in other words, is not a crime.” However, she noted that Dutcher told several individuals and posted on Facebook that he intended to kill the President. He even told investigators that he killed small animals with a slingshot and could kill a man with it.

  Dutcher argued that no one took his statements seriously. However, Judge Wood noted that the security guard reported Dutcher to his supervisor only 30 seconds after their meeting. Also, it appeared that at least some Facebook readers took Dutcher seriously.

  Admittedly, the Court’s true threat jurisprudence is less than pellucid, as U.S. Supreme Court Justice Sonia Sotomayor recently noted. I have previously described it as a “muddled mess.”

  However, the Supreme Court did define true threats in Virginia v. Black (2003)  as “a serious expression of an intent to commit an act unlawful violence to a particular individual or group of individuals.”

  Dutcher’s repeated comments about killing the President were enough to fall within the ambit of the true threat category.

  About the author: David L. Hudson, Jr. is the author, co-author, or co-editor of more than 40 books, including: Let The Students Speak!: A History of the Fight for Free Expression in American Schools, The First Amendment: Freedom of Speech, and Teen Legal Rights.

  This article was published by the Newseum Institute.