Walter Olson
Walter Olson

If you expected a second Trump term to usher in some sort of new era of free speech, you might by now be feeling some rueful secondthoughts. In the latest development, Trump’s pick for federal prosecutor in Washington, DC, Edward R. Martin Jr., has sent a threat/​investigation letter to Rep. Robert Garcia (D‑CA) over comments that Garcia made during a live CNN interview on Feb. 12. Asked about Democrats’ response to Elon Musk, Garcia evoked a hackneyed trope about political hardball: “What the American public wants is for us to bring actual weapons to this bar fight. This is an actual fight for democracy.” Martin sees fit to pretend that these remarks somehow constitute an actual physical threat to Musk.
Martin sent a similar letter to Sen. Chuck Schumer (D‑NY) over his intemperate “released the whirlwind” speech at the Supreme Court four years ago, on the premise that it too might have posed an unlawful threat to public officials. I wrote a piece at the time deploring those remarks of Schumer’s as reprehensible and out of line. But I never imagined for a moment that they amounted to some sort of legally cognizable threat to the Justices’ personal security. (Schumer says that by “whirlwind” he had in mind political and public-image consequences for the court.)
Under longstanding Supreme Court doctrine, antagonistic speech, very much including speech antagonistic toward a public official, is ordinarily constitutionally protected by the First Amendment unless it falls into one of several narrow exceptions. Most relevant here is whether it is a “true threat,” which the Court said in the 2003 case of Virginia v. Black must involve “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Nothing of the sort is present in either case here.  » Read More
https://www.cato.org/blog/when-does-speech-threaten-officials-one-top-federal-prosecutor-takes-aggressive-view