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Wednesday, March 6, 2013

EXCELLENT NYT op-ed by Dan Emmett

EXCELLENT NYT op-ed by Dan Emmett

A Real Threat Must Be Prosecuted

Dan Emmett, who was an agent in the Secret Service presidential protection division, is the author of "Within Arm's Length: The Extraordinary Life and Career of a Special Agent in the United States Secret Service."

Updated March 5, 2013, 9:14 PM

The charges in the cannibalism case in New York are largely based on e-mails that the defendant, Gilberto Valle, sent to others, rather than on the commission of overt acts. Likewise Daniel Brewington, an Indiana man who is serving a two-year sentence for statements he made on the Internet about a judge who presided over his divorce case.

While such communications can be vile and disturbing, are they criminal acts? This question has always loomed large for the United States Secret Service regarding verbal and written threats against the president. Who represents a threat, and who is merely venting frustration? What is free speech, and what is a crime? The answers lie somewhere in the balancing act of protecting free speech while also protecting the president. And law enforcers could ask many of the same questions about protecting average citizens

While violent communications can be disturbing, are they criminal? This question looms large for the Secret Service.

Each year, thousands of threats against the life of the president come to the attention of the United States Secret Service. These threats are obviously taken very seriously by the Secret Service, and each is investigated to the fullest. But not all individuals who make such threats are prosecuted.

The relevant law states in part: “Whoever knowingly and willfully threatens to take the life of or to inflict bodily harm upon the President of the United States shall be fined under this title or imprisoned not more than five years, or both.” While this sounds final and precise, Secret Service agents and prosecutors must make many judgment calls. Legally, enforcement hinges on three factors: First, that the person uttered or wrote words alleged to be a threat against the president. Second, that the person understood and meant the words as a true threat. And third, that the person uttered the words knowingly and willfully. It is not necessary under the law to prove that the person intended to carry out the threat.

A statute like this, which makes criminal a form of pure speech, must be interpreted with the First Amendment in mind. The Secret Service and the United States attorney’s office both want to protect the president, and neither wants to trample free speech. After all, most people who threaten the president are speaking out of emotion, and few have the ability, resources or opportunity to harm the president.

For example, if a man was drinking heavily in a bar thousands of miles from Washington, and stated that he was going to shoot the president if he ever got the chance, is this a threat worthy of prosecution? This often hinges on that second factor in the law: assessing the "true threat." If the investigating Secret Service agent found the person owned no vehicle, had no access to firearms and had never left the state he grew up in, the prosecutor is likely to decide against arresting and charging the man. The decision would be different if the individual were found to have access to weapons, was highly trained in their use, was discovered with a map of Washington with a circle around the White House, and possessed a plane ticket to Washington.

Officers of our criminal justice system are entrusted with enormous powers, including depriving a person of freedom based completely on the spoken or written word. The effectiveness and fairness of all laws that attempt to balance freedom of speech with public safety depends upon the sound judgment and discretion of the officers who enforce the laws.

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