We are fortunate to live in a country where we are free to criticize our political leaders and their policies. In other nations with significantly less freedoms, a person who would dare insult the heads of government could face fines and imprisonment. However, the First Amendment freedoms of political speech and to petition grievances against the government do have their limits. No matter what your feelings are about the government, it is a criminal offense to threaten to kill, kidnap or physically harm the president, vice-president or any candidates to the same. The penalties are severe, and the U.S. Secret Service investigates these violations every day.
The current statute prohibiting threats against the president or vice-president are as follows:
- “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, to kidnap, 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 under this title or imprisoned not more than five years, or both.” 18 U.S.C. §871(a).
If convicted of this offense, there may be additional legal consequences besides going to prison:
- A fine up to $250,000.00. 18 U.S.C. §3571(b)(3).
- A special assessment of $100.00. 18 U.S.C. §3013(a)(2)(A).
- Supervised release after imprisonment up to 3 years. 18 U.S.C. §3583(b)(2).
- If a resident alien, this crime is considered a deportable offense. 8 U.S.C. §1227(a)(2)(D)(ii).
- Continued monitoring by the United States Secret Service, especially online activities.
A person can be convicted of this crime from speech alone. Federal prosecutors are not required to prove that the individual making the threat made any extra efforts to carry out the threat. It is not even necessary to directly communicate the threat to the president. As long as the person making the statement comprehends the effect of the words said and the statement further manifests a determination to carry out the threat, then a felony conviction can stand.
In Watts v. United States, 394 U.S. 705 (1969), the defendant attended a public rally on the Washington Monument on August 27, 1966. The following events occurred:
- “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.’” Id. at 706.
The jury found Mr. Watts guilty of knowingly and willfully threatening the President. The U.S. Court of Appeals upheld his conviction. However, the U.S. Supreme Court threw the conviction out, finding that there was no evidence that Mr. Watts “knowingly and willfully” threatened the president:
- “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. 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 willfulness requirement met if the speaker voluntarily uttered the charged words with “an apparent determination to carry them into execution.” The majority below seemed to agree. Perhaps this interpretation is correct, although we have grave doubts about it. 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 wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The language of the political arena, like the language used in labor disputes 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.” Id. at 707-708 (internal citations omitted).
The government failed to sustain the conviction because the evidence didn’t show that Mr. Watts was a true “threat” that rose above mere political discourse. However, the U.S. Supreme Court still found that the statute was constitutionally valid and a conviction can arise on speech alone provided that the “threat” was sufficiently credible. In 2010, Brian Dean Miller was convicted and sentenced to prison for 27 months in Texas for threatening President Obama under 18 U.S.C. §871(a). He posted on Craiglist: “People, the time has come for revolution. It is time for Obama to die. I am dedicating my life to the death of Obama and every employee of the federal government. As I promised in a previous post, if the health care reform bill passed I would become a terrorist. Today I become a terrorist.” Miller’s conviction was upheld by the Fifth Circuit Court of Appeals. People can and do get convicted and sent to prison under this crime.
In our modern age, the internet and social media allow anyone to post messages and statements at any time for millions of people to see. This also includes the U.S. Secret Service. It is perfectly legal to disagree with the President and the administration’s policies and even use strong language to support that criticism. However, if the posting amounts to a threat to commit serious physical harm, kidnap or kill the President and the statement is taken seriously by federal prosecutors, then you can be looking at a lengthy stay in prison. It doesn’t matter if the message wasn’t actually sent to the President personally. It takes but a moment to post online and the lifelong consequences could be devastating if you do not use your common sense. Please think carefully before you post online.
If you are charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak for assistance today.
