A True Threat to First Amendment Rights: United States v. Turner and the True Threats Doctrine

Abstract

The Supreme Court has carved out several exceptions to what qualifies as protected speech under the First Amendment, including true threats and incitement. The majority rule in the circuit courts is that speech qualifies as a true threat if the speech would be interpreted by an objectively reasonable person as an intent to commit serious harm or injury. Most courts apply a true threats analysis to cases involving a charge under 18 U.S.C. § 115(a)(1)(B). Furthermore, most courts do not require that the speaker actually intend to carry out the threat in order to be convicted. Although courts have generally treated the doctrines as separate, the Court in United States v. Turner agreed with the Government's argument that being charged with threatening federal judges under § 115 is essentially being charged with incitement. Therefore, this Note argues that the Turner Court should have applied the true threats doctrine as it was applied in the seminal Supreme Court case, Watts v. United States, in the relevant Second Circuit cases, United States v. Kelner and United States v. Malik, and in accordance with the statutory scheme established by other circuit court cases dealing with charges under § 115. This Note further analyzes how issues presented by the Turner case might have been resolved if the Second Circuit had applied the proper true threats analysis. Finally, this Note calls for reversal and remand of the Turner case by the Second Circuit Court of Appeals and for Supreme Court clarification of issues left unresolved by the circuit courts