Mocking George: Political Satire as 'True Threat' in the Age of Global Terrorism
University of Miami Law Review, Vol. 58, p. 843, April 2004
47 Pages Posted: 13 Aug 2009
Date Written: April 1, 2004
This Article examines the First Amendment implications of recent investigations undertaken by the federal government against persons engaged in satirical speech. It explores the democratizing and corrective function that political satire and parody historically have played in American politics. Governmental abuse of power under federal threat statutes is then explored, including 18 U.S.C. §§ 871, 876, and 879, which stifle satirical speech that takes the form of attacks on the President. This Article looks at various incidents in the context of the erosion of the “true threat” doctrine by lower federal courts, and then examines the implications of the Court's recent decision in Virginia v. Black, [FN8] which appears to have restored the speech-protective aspects of that doctrine. The Article concludes that while lower courts improperly have instructed juries to apply an objective, “reasonable person” standard in determining whether certain speech constitutes a “true threat,” appropriately instructed juries have an essential role to play in serving as a popular check on abusive government practices that seek to chill speech critical of government officials and their policies. The Article calls for a standard of conditional relevancy derived from Rule 104 of the Federal *845 Rules of Evidence that would allow such questions to go to the jury once the judge makes the initial determination that there is sufficient evidence of a subjective intent to threaten. Such a standard would balance the role of the judge and jury in such cases consistent with the First Amendment, and ensure that jurors continue to play a meaningful role in serving as an essential check on unaccountable government officials.
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