Wanted posters, bulletproof vests, and the first amendment: Distinguishingtrue threats from coercive political advocacy

In February 1999, an Oregon jury returned a $107 million verdict for doctor s who successfully argued that antiabortion activists' propaganda, in the f orm of posters and a web site, constituted true threats in violation of fed eral law. The judge rejected the activists' argument that the First Amendme nt protected their speech and instructed that if a reasonable person would have foreseen that the communication would be interpreted as threatening, t he 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 polit ical 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 off er too much protection. The decision in Watts v. United States, on the othe r hand, offers no First Amendment protection for true threats but insuffici ently defines where coercive advocacy ends and threats begin. This Comment proposes a synthesized test under which juries first would apply a four-par t definition to distinguish threats from political advocacy, and second det ermine whether the speech poses a likelihood of imminent violence. The prop osed test would offer an improved approach for evaluating political speech neither explicitly threatening nor purely abstract.