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2002 BYU L. Rev. 829 (2002)


In these materials, we set out a road map for the task of reforming the jurisprudence of threats and an articulation of its rationale under the First Amendment. In addition, we examine the basic jurisprudence of the federal criminal law, in particular, its traditional roots in notions of individual responsibility based on personal conduct and state of mind. In Part I, we analyze the district court and the Ninth Circuit opinions in the American Coalition litigation. In Part II, we trace the traditional theory and practice of free speech under the First Amendment, rooted in the history and various rationales of the First Amendment. We are interested in putting the question "why?" to all black letter rules; for only in light of the answer, or answers, can particular rules and practices be intelligently evaluated. The law must remain a matter of reason, not fiat. In Part III, we examine Supreme Court jurisprudence on "true threats." We examine each of the major efforts of the Court to grapple with this elusive category. Only then do we make an effort to synthesize the law. In Part IV, we look in detail and in context at the various tests the circuit courts of appeal apply to distinguish "true threats" from "protected speech," and we analyze how these tests and practices in their case-by-case application fit (comfortably or otherwise) into the Supreme Court's general free speech teachings and the general jurisprudence of the federal criminal law. Finally, in Part VI, we analyze the key components of the Ninth Circuit's panel opinion in American Coalition and the en banc dissents to see how they could be refined to conform more closely to the teachings of the Supreme Court in the area of free speech and the jurisprudence of federal criminal law.


Reprinted with permission of Brigham Young University Law Review.



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