Supreme Court of the United States
394 U.S. 705 (1969).
Decided April 21, 1969.
After a jury trial in the United States
District Court for the District of Columbia, petitioner was convicted
of violating a 1917 statute which prohibits any person from 'knowingly
and willfully * * * (making) any threat to take the life of or to
inflict bodily harm upon the President of the United States * * *.'
(note 1). The incident which led to petitioner's arrest occurred
on August 27, 1966, during a public rally on the Washington Monument
grounds. The crowd present broke up into small discussion groups and
petitioner joined a gathering scheduled to discuss police brutality.
Most of those in the group were quite young, either in their teens or
early twenties. Petitioner, who himself was 18 years old, entered into
the discussion after one member of the group suggested that the young
people present should get more education before expressing their views.
According to an investigator for the Army Counter Intelligence Corps
who was present, petitioner responded: '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.' 'They are not going to make me kill my
black brothers.' On the basis of this statement, the jury found that
petitioner had committed a felony by knowingly and willfully
threatening the President. The United States Court of Appeals for for
the District of Columbia Circuit affirmed by a two-to-one vote. 131
U.S.App.D.C. 125, 402 F.2d 676 (1968). We reverse.
At the close of the Government's case, petitioner's
trial counsel moved for a judgment of acquittal. He contended that
there was 'absolutely no evidence on the basis of which the jury would
be entitled to find that (petitioner) made a threat against the life of
the President.' He stressed the fact that petitioner's statement
was made during a political debate, that it was expressly made
conditional upon an event--induction into the Armed Forces-- which
petitioner vowed would never occur, and that both petitioner and the
crowd laughed after the statement was made. He concluded, 'Now actually
what happened here in all this was a kind of very crude offensive
method of stating a political opposition to the President. What he was
saying, he says, I don't want to shoot black people because I don't
consider them my enemy, and if they put a rifle in my hand it is the
people that put the rifle in my hand, as symbolized by the President,
who are my real enemy.' We hold that the trial judge erred in denying
Certainly the statute under which petitioner was
convicted is constitutional on its face. The Nation undoubtedly has a
valid, even an overwhelming, interest in protecting the safety of its
Chief Executive and in allowing him to perform his duties without
interference from threats of physical violence. See H.R.Rep. No. 652,
64th Cong., 1st Sess. (1916). Nevertheless, a statute such as this one,
which makes criminal a form of pure speech, must be interpreted with
the commands of the First Amendment clearly in mind. What is a threat
must be distinguished from what is constitutionally protected speech.
The judges in the Court of Appeals differed over
whether or not the 'willfullness' requirement of the statute implied
that a defendant must have intended to carry out his 'threat.' Some
early cases found the willfullness requirement met if the speaker
voluntarily uttered the charged words with 'an apparent determination
to carry them into execution.' Ragansky v. United States, 253 F. 643,
645 (C.A.7th Cir. 1918) (emphasis supplied); cf. Pierce v. United
States, 365 F.2d 292 (C.A. 10th Cir. 1966). The majority below seemed
to agree. Perhaps this interpretation is correct, although we have
grave doubts about it. See the dissenting opinion below, 131
U.S.App.D.C., at 135--142, 402 F.2d, at 686--693 (Wright, J.). But
whatever the 'willfullness' requirement implies, the statute initially
requires the Government to prove a true 'threat.' We do not believe
that the kind of political hyperbole indulged in by petitioner fits
within that statutory term. For we must interpret the language Congress
chose 'against the background of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust,
and wideopen, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public
officials.' New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct.
710, 721, 11 L.Ed.2d 686 (1964). The language of the political arena,
like the language used in labor disputes, see Linn v. United Plant
Guard Workers of America, 383 U.S. 53, 58, 86 S.Ct. 657, 15 L.Ed.2d 582
(1966), is often vituperative, abusive, and inexact. 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.
The motion for leave to proceed in forma pauperis
and the petition for a writ of certiorari are granted and the judgment
of the Court of Appeals is reversed. The case is remanded with
instructions that it be returned to the District Court for entry of a
judgment of acquittal.
It is so ordered.
Judgment for Court of Appeals reversed and case
remanded with instructions.
Note 1: 18 U.S.C. s 871(a) provides:
'Whoever knowingly and willfully
deposits for conveyance in the mail or
for a delivery from any post office or by any letter carrier any
letter, paper, writing, print, missive, or document containing any
threat to take the life of or to inflict bodily harm upon the President
of the United States, the President-elect, the Vice President or other
officer next in the order of succession to the office of President of
the United States, or the Vice President-elect, or knowingly and
willfully otherwise makes any such threat against the President,
President-elect, Vice President or other officer next in the order of
succession to the office of President, or Vice President-elect, shall
be fined not more than $1,000 or imprisoned not more than five years,
Mr. Justice STEWART would deny the
petition for certiorari.
Mr. Justice WHITE dissents.
Mr. Justice DOUGLAS, concurring.
The charge in this case is of an ancient vintage.
The federal statute under which petitioner was
convicted traces its ancestry to the Statute of Treasons (25 Edw. 3)
which made it a crime to 'compass or imagine the Death of * * * the
King.' Note, Threats to Take the Life of the President, 32 Harv.L.Rev.
724, 725 (1919). It is said that one Walter Walker, a 15th century
keeper of an inn known as the 'Crown,' was convicted under the Statute
of Treasons for telling his son: 'Tom, if thou behavest thyself well, I
will make three heir to the CROWN.' He was found guilty of
compassing and imagining the death of the King, hanged, drawn, and
quartered. 1 J. Campbell, Lives of the Chief Justices of England 151
In the time of Edward IV, one Thomas Burdet who
predicted that the king would 'soon die, with a view to alienate
the affections' of the people was indicted for 'compassing and imaging
of the death of the King,' 79 Eng.Rep. 706 (1477)--the crime of
constructive treason with which the old reports are filled.
In the time of Charles II, one Edward Brownlow was
indicted 'for speaking these words, that he wished all the gentry in
the land would kill one another, so that the comminalty might live the
better.' 3 Middlesex County Rec. 326 (1888). In the same year (1662)
one Robert Thornell was indicted for saying 'that if the Kinge did side
with the Bishops, the Divell take Kinge and the Bishops too.' Id., at
While our Alien and Sedition Laws were in force,
John Adams, President of the United States, en route from Philadelphia,
Pennsylvania, to Quincy, Massachusetts, stopped in Newark, New Jersey,
where he was greeted by a crowd and by a committee that saluted him by
firing a cannon.
A bystander said 'There goes the President and they
are firing at his ass.' Luther Baldwin was indicted for replying that
he did not care 'if they fired through his ass.' He was convicted in
the federal court for speaking 'sedicious words tending to defame the
President and Government of the United States' and fined, assessed
court costs and expenses, and committed to jail until the fine and fees
were paid. See J. Smith, Freedom's Fetters 270--274 (1956).
The Alien and Sedition Laws constituted one of
our sorriest chapters; and I had thought we had done with them forever.
Yet the present statute has hardly fared better.
'Like the Statute of Treasons, section 871 was passed in a 'relatively
calm peacetime spring,' but has been construed under circumstances when
intolerance for free speech was much greater than it normally might
be.' Note, Threatening the President: Protected Dissenter or Political
Assassin, 57 Geo.L.J. 553, 570 (1969). Convictions under 18 U.S.C. s
871 have been sustained for displaying posters urging passersby to
'hang (President) Roosevelt.' United States v. Apel, 44 F.Supp. 592,
593 (D.C.N.D.Ill.1942); 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.' United States v. Stickrath, 242 F.
151, 152 (D.C.S.D.Ohio 1917); 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,' Clark v. United States, 250 F. 449
(C.A.5th Cir. 1918). In sustaining an indictment under the statute
against a man who indicated that he would enjoy shooting President
Wilson if he had the chance, the trial court explained the thrust of s
'The purpose of the statute was
undoubtedly not only the protection of the President, but also the
prohibition of just such statements as those alleged in this
indictment. The expression of such direful intentions and desires, not
only indicates a spirit of disloyalty to the nation bordering upon
treason, but is, in a very real sense, a menace to the peace and safety
of the country. * * * It arouses resentment and concern on the part 933
Suppression of speech as an effective police measure
is an old, old device, outlawed by our Constitution.
Mr. Justice FORTAS, with whom Mr.
Justice HARLAN joins, dissenting.
The Court holds, without hearing, that this
statute is constitutional and that it is here wrongly applied. Neither
of these rulings should be made without hearing, even if we assume that
they are correct.
Perhaps this is a trivial case because of its
peculiar facts and because the petitioner was merely given a suspended
sentence. That does not justify the Court's action. It should induce us
to deny certiorari, not to decide the case on its merits and to
adjudicate the difficult questions that it presents.