"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.

Threats, real and unreal

The case of Washington v. Tracey Johnston revolves around the subject of spoken threats, and whether the threat is “real” or not.

Washington courtsThis may sound either esoteric or like the trickery of a clever defense lawyer. It’s not. How many times have you muttered a desire to wreack bodily harm on someone – maybe, for example, a driver on the highway – with no practical intention to follow through? (When I was in college, the phrase “he ought to be taken out and shot” popped up from time to time, usually for minor offenses.) Death and injury feature regularly in metaphor. Should all that be actionable as a felony offense?

On its face, Washington law (RCW 9.61.160(1)) seems to contemplate something like that. It says, “It shall be unlawful for any person to threaten to bomb or otherwise injure any public or private school building, any place of worship or public assembly, any governmental property, or any other building, common carrier, or structure, or any place used for human occupancy . . .”

The first amendment does come into play here, because courts have ruled that speech can be circumscribed only under extreme circumstances. The legal principle is that while most speech is “protected,” one of the categories of unprotected speech is that of a “true threat” – a threat issued with apparent connection to actual or intended behavoir. The Washington Supreme Court has defined it, “in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of an intention to inflict bodily harm upon or to take the life of {another individual}.”

So what to do about Travey Johnston, who blurs the lines just a tad?

Johnston was drinking, apparently heavily, on an Alaskan Air flight into SeaTac, and as a result of his behavoir was accosted by law enforcement at the airport. The incident might have ended simply except that Johnson, according to testimony, “‘started vocalizing his unhappiness.’ TR at 92. Johnston said that ‘he would come back to the airport and . . . this place up’ and that ‘he was going to blow this place up.’ TR at 94. Blackwell testified that Johnston said that ‘he knew about the airport, and he knew what it would take . . . all he needed was a Ryder truck and some nitro diesel fuel . . . .’ TR at 94-95. Johnston also said that ‘he would fin{d} that bitch of a flight attendant [who had called law enforcement] . . . and get her and said he believed she lived in Mercer Island.'”

At that point he was charged with violating the bomb threat law.

But was it Johnston or just the alcohol talking? Did Johnston, once sobered up, really plan such violent revenge?

We can’t settle that here, not knowing Johnston or many of the details about the incident and his background. The Washington Supreme Court did, however, send his conviction back to trial court for re-trial. (This involved reversing a Court of Appeals decision.) The main reason is that the judge in the case informed the jury about the Washington bomb threat law, but not the legal perspective on it – that conviction had to rely on Johnston making a “real threat” and not just mouthing off.

“In Johnston’s case, the jury was influenced by the erroneous jury instructions that governed the trial. Under these circumstances, independent appellate review is inappropriate. Instead, this case must be remanded for a new trial under proper instructions,” the court concluded.

Significance here on the free speech front.

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