The First Amendment does not give anyone the right to threaten the life of the President. In fact, it is a crime to threaten the life of the President and people have gone to prison for doing so:
18 U.S. Code § 871 - Threats against President and successors to the President
(a)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.
This provision provides two ways to violate the law: first, by sending a letter in the mail “containing any threat to take the life of, or to kidnap, or to inflict bodily harm upon the President of the United States; second, or “otherwise makes any such threat against the President.” Both means require that the accused act “knowingly and willfully.”
Yesterday, Donald Trump posted a video of two pickup trucks adorned with MAGA regalia: signs, stickers, flags. The second displayed on its tailgate a realistic image of President Biden, lying on the ground, tied up.
There is no evidence that Trump or his campaign had anything to do with the creation or display down the highway of this image. But Trump is clearly responsible for its universal dissemination. Does Trump's conduct in publicizing this image constitute a threat to the President? Most First Amendment lawyers would probably say no. But such thinking applies 20th-century standards to 21st-century conduct. And it ignores the context in which Donald Trump's words are acted upon.
So what did Trump know and what did he willfully do? Even assuming that Trump was surprised when the mob he encouraged to go to the Capital and "fight like hell" actually did what he told them to do--tried to take over the government--he now knows what his words will do. The proof of this is that the insurrectionists only stopped when he told them to.[i]
He knows that his attacks on prosecutors and witnesses and judges have led to threats against prosecutors, witnesses, and judges.[ii]
Long before memes were a thing, we all learned that a picture was worth a thousand words. Here the law shouldn't be made blind by the argument that "I didn't tell them to kidnap the President, I just showed everyone the picture of what it would look like, and sang "Wouldn't it be nice:" by the Beach Boys.
Now, First Amendment lawyers are going to argue that the law is overbroad and that my interpretation would apply to protected speech. Only if you remove the context. When my mother said she would murder me if I punched the girl next door again, not even my five-year-old self believed I was in any danger. When neighbors are talking about the man down the street who never picks up after his dog visits their lawns and one says to the other, one day I am going to take out my .22 and shoot them both, that would not be a crime. When a citizen says to another or a dozen others or a hundred dozen others that Joe Biden should be removed from office right now by whatever means necessary, absent any history that this person has a following that would act on their words, the speaker's conduct would not be knowing an willful in contrast to Donald Trump saying the same thing.
But what of the video posted by Trump? The Supreme Court has held:
[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827 (1969) (per curiam). But this principle does not apply to what the Supreme Court calls “true threats:”
“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States, supra, at 708, 89 S.Ct. 1399 (“political hyperbole” is not a true threat); R.A.V. v. City of St. Paul, 505 U.S., at 388, 112 S.Ct. 2538. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.” Ibid. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.
Virginia v. Black, 538 U.S. 343, 359–60, 123 S. Ct. 1536, 1548 (2003).
Finally, and most significantly, the Supreme Court has held that the First Amendment does not even apply to threats against the President. Id. at 362, 1549.
We need to ask ourselves whether our justice system is so ossified that it would allow Trump to avoid the criminal consequences of creating the conditions for violence and intimidation by claiming he did not know people would take him up on his suggestions.
That is certainly not how §871 has been interpreted:
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 someone 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 871:
'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. * * * (D.C.E.D.Mich.1918).
Watts v. United States, 394 U.S. 705, 711–12, 89 S. Ct. 1399, 1403 (1969)(Douglas, concurring).
But would it matter if Trump were charged with this crime? Would he just be released and find some other means of plausible deniability? Not with this offense, not with his history. Here the government would have a very strong argument for Pretrial Detention.
A federal court's authority to protect the integrity of its proceedings encompasses the authority to take reasonable actions to avoid intimidation or coercion of witnesses.[iii] District Courts have ordered pretrial detention in response to threats to intimidate witnesses.[iv]
Even if he were released to home detention, all his media posts could be subject to prereview by Pretrial Services which would still allow legitimate political speech but shut down his ongoing efforts at intimidation. United States v. Vasilakos, 508 F.3d 401, 411 (6th Cir. 2007)
You live by the sword, you die by the sword.
[i] Final Report Select Committee to Investigate the January 6th Attack on the United States Capitol, p. 606, December 22, 2022, 117th Congress Second Session, House Report 117-663.
[ii] Joseph Tanfani, Ned Parker And Peter Eisler, “Judges in Trump-related cases face unprecedented wave of threats,” Reuters, Feb 29, 2924, https://www.reuters.com/investigates/special-report/usa-election-judges-threats/; Katelyn Polantz and Holmes Lybrand “Special counsel details threats against witnesses in Mar-a-Lago case in effort to protect their identities, "CNN, February 9, 2024, https://www.cnn.com/2024/02/09/politics/mar-a-lago-trump-witness-threats/index.html
[iii] United States v. Wind, 527 F.2d 672, 674–75 (6th Cir.1975).
[iv] United States v. Graewe, 689 F.2d 54, 56 (6th Cir.1982).
Although I'm always a LITTLE cautious about even touching a free speech precedent from the World War I era (when the Court pretty clearly decided it just didn't care about free speech), this does seem plausible. The true threats exception is certainly a thing, and we do have a history from Trump.
Alas that our court system right now feels like the Old Republic's court system in The Phantom Menace!