Washington Law Review


In February 1999, an Oregon jury returned a $107 million verdict for doctors who successfully argued that antiabortion activists' propaganda, in the form of posters and a web site, constituted true threats in violation of federal law. The judge rejected the activists' argument that the First Amendment protected their speech and instructed that if a reasonable person would have foreseen that the communication would be interpreted as threatening, the jury must find in favor of the plaintiffs. This Comment argues that the dichotomy of analysis under two leading U.S. Supreme Court cases has led to conflicting standards that provide insufficient means for evaluating political speech with threatening overtones. While the Supreme Court's decision in Brandenburg v. Ohio provides First Amendment protection for some of the most radical political speech, if applied to threats its standard would offer too much protection. The decision in Watts v. United States, on the other hand, offers no First Amendment protection for true threats but insufficiently defines where coercive advocacy ends and threats begin. This Comment proposes a synthesized test under which juries first would apply a four-part definition to distinguish threats from political advocacy, and second determine whether the speech poses a likelihood of imminent violence. The proposed test would offer an improved approach for evaluating political speech neither explicitly threatening nor purely abstract.

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