Rogers v. United States – Oral Argument – April 14, 1975

Media for Rogers v. United States

Audio Transcription for Opinion Announcement – June 17, 1975 in Rogers v. United States

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Warren E. Burger:

We’ll hear arguments first this morning in Number 73-6336, Rogers against the United States.

Mr. Parnell, you may proceed whenever you’re ready.

Ralph W. Parnell, Jr.:

Mr. Chief Justice and may it please the Court.

This is a cause which arose in the District Court in Louisiana as result of a statement that was made by one George Herman Rogers on March 23, 1972.

At the time the statement was made, Mr. Rogers was in a Holiday Inn in Shreveport, Louisiana at approximately six o’clock in the morning.

As result of the statement, Mr. Rogers was charged with a violation of 18 U.S.C. (a) 871 (a) which reads as follows:

“Whoever knowingly and willfully deposits for conveyance in the mail or for delivery from any post office or by any letter carrier of any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, the President elect, the Vice President or other officer next in order of succession to the Office of President of the United States or the Vice President elect or knowingly and willfully otherwise makes any such threat against the President, President elect, Vice President or other next officer in succession to the Office of President or Vice President shall be fined not more than $1,000.00 or imprisoned not more than five years above.”

The statement or statements that Mr. Rogers has been charged to have made as I said were made at six o’clock in the morning, initially made in the presence of three waitresses at this particular Holiday Inn.

The reaction of the three ladies that heard the statement, they’re all describing as being odd, irrational, something wrong within.

The statements that were charged in the indictment were taken out of context, they were taken out of a discussion that Mr. Rogers was trying to have with the three waitresses.

Mr. Rogers had expressed to all three that he was very much upset about at the time President Nixon’s trip to China.

This event took place immediately after President Nixon’s trip to China.

Mr. Rogers in his comments said that he disagreed with President Nixon being in China, that the President was consorting with our enemy.

He did not like the communist, he did not like the red Chinese, he was very upset with our President selling us out and for that he was going to Washington to beat his ass.

This in essence is what Mr. Rogers is charged with.

He said these allegedly on five occasions, the words being the same.

Potter Stewart:

In five occasions, three of them on that morning in the Holiday Inn resident dining room and that two were later to the police officers, isn’t it?

Ralph W. Parnell, Jr.:

That’s correct.

That is correct.

Potter Stewart:

Substantially the same statement each time?

Ralph W. Parnell, Jr.:

Substantially, the same statement, also substantially the same conversation each time.

Warren E. Burger:

Was there something said about killing the President?

Ralph W. Parnell, Jr.:

This was said I believe, Your Honor, to the police officers.

That is correct.

Each time that Mr. Rogers tried to engage in a conversation or discussion of the political topic of the day which was President Nixon’s trip to China.

He was rebuffed.

Nobody was really looking and listening to him.

One of the witnesses — one of the gentlemen that heard the statement said that he was somewhat irritated by Mr. Rogers’ disturbance.

He was disturbing, this man was a businessman.

He was trying to get ready for his day’s work and Mr. Rogers was disturbing him from thinking about his business of the day.

Ralph W. Parnell, Jr.:

All witnesses said that they initially thought that Mr. Rogers was intoxicated.

One witness, one of the waitresses said that she smell the faint odor of alcohol on Mr. Rogers’ breath.

She also said that in her conversation with Mr. Rogers, that it was raining and that she said that she wished that it would stop raining.

And at this point, Mr. Rogers informed her that he could make it stop raining.

And she said that she laughed at this and thought that maybe we have to leave that to higher power, and Mr. Rogers informed her that he was that higher power that he was Jesus Christ.

These statements taken in this context we feel like are not and cannot be prosecuted under the statute that I read under 18 U.S.C. (a) 871 (a).

This statute is a good statute.

Certainly, the United States has a paramount right and duty to protect its highest officer, the President of the United States.

It would not — if we do not protect our highest officer from a serious or true threat and we would certainly be jeopardizing not only his life but his enforcement or his duties or keying out his duties.

The purpose of the statute or at least the history of it — the legislative history of it indicates that in 1916, at the time the statute, was passed that the President was having some difficulty with written threats.

Mr. Webb in arguing for passage of the legislation stated that the written documents that the President was receiving was annoying to him, was irritating to him, was causing the President to trouble.

So, they — he said, “We need to enact this law to prevent people from writing to the President and threatening him.”

I do not believe that at the time this law was passed that the legislators intended for it to be carried as far as it’s being carried today particularly to Mr. George Herman Rogers.

The law was passed in a tranquil period of time.

It was first interpreted during World War I when the atmosphere of the country was somewhat storming.

The early cases are all very similar in the utterances which were prosecuted to the ones that Mr. George Herman Rogers made.

I truly believe that had those three men — or had the people or the men in the early cases have they’ve been tried today that they certainly would not be convicted under the statute for the statements they made.

I think this — their utterances towards President at the time Wilson in no way under today’s interpretations of the law would be considered a true threat against the President of the United States.

This Court has expressed its views on threats or statements or utterances against the President of United States in only one occasion and that was in the case of Watts versus United States.

And in that case, this Court said that, first of all, there must be a true threat made before it can be threat against the President of United States.

I believe that we we’re here this morning to try to define what a true threat is.

I think that this Court must lay down now guidelines for the fact finders to determine what a true threat is within the meaning of the statute.

The statute was passed to at that time what was I suppose a true threat against the country and that was that anybody the theory was that anybody that spoke out against the President or against the man in authority was in someway being disloyal to the United States, was trying to incite others to maybe carry out the Act.

And we don’t believe that under the First Amendment of the United States that this law can be applied to the facts before the Court.

The First Amendment —

William J. Brennan, Jr.:

Mr. Parnell, are you going to deal with the suggestion of the Solicitor General we ought not reach this question?

Ralph W. Parnell, Jr.:

No Your Honor, I’m not.

William J. Brennan, Jr.:

So what your reaction to it? Apparently, the Government is saying, they don’t want to retry this man and that this conviction ought to be set aside.

Ralph W. Parnell, Jr.:

Certainly, Your Honor as defense counsel I would adopt any argument that the Solicitor General may have towards releasing my client or acquitting him on any basis, I certainly would.

Warren E. Burger:

He’s given you a very good opening on the subject suppose you address yourself to that question briefly.

William H. Rehnquist:

You didn’t ever raise that question yourself did you in the Court of Appeals or feel it was sufficient to call either to the attention of the Court of Appeals or to this Court?

Ralph W. Parnell, Jr.:

No, we did not raise that issue.

It’s before — it has been raised for the first time before this Court.

Byron R. White:

Mr. Parnell, out of — is it incarcerated now or is he out on bail?

And has he served anytime at all?

Ralph W. Parnell, Jr.:

Your Honor he was sentenced to five years, he — the Fifth Circuit expressed some concern about the sentence.

The District Court then cuts the sentence back to three years, he has served some two years of that sentence.

Presently, Mr. Rogers is in the hospital being treated for alcoholism.

As the brief states, Mr. Rogers has a serious history of chronic alcoholism.

He has over 100 arrests in the past 10 years for being simply drunk.

Your Honor, as far as your inquiry as to our position on releasing Mr. Rogers due to the communication that was directed from the jury to the Court and back to the jury.

Again, I would say that of course we would have no objection whatsoever this case turned on that.

However, we feel like –I would suppose you support it.Sir.

William J. Brennan, Jr.:

I would support — suppose you would support.

Ralph W. Parnell, Jr.:

Yes very definitely, we would support it anyway.

William H. Rehnquist:

Well, if you would support it and thought it was of any importance at all?

Why didn’t you raise it either to the District Court when you found out about it or to the Court of Appeals?

Ralph W. Parnell, Jr.:

Because we did not find that about it until — I would assume until we got to the Court of Appeals or even after that.

William H. Rehnquist:

Well, if you find out about when you got the Court of Appeals, why didn’t you press that there?

Ralph W. Parnell, Jr.:

To be honest with you, we felt like that the issues involved as far as Mr. Rogers was concerned we thought that we had a better argument on the law than with this technical violation of the other law.

We didn’t know about it to be honest with you.

We did not know that the Court had talked to the jury.

We didn’t know it.

William H. Rehnquist:

I know but on the Court — when the Court pulled the jury you had some implication of it, didn’t you?

Ralph W. Parnell, Jr.:

We had some indication in, yes we did.

William H. Rehnquist:

And you still did nothing about it?

Ralph W. Parnell, Jr.:

No.

Warren E. Burger:

But, counsel suppose we hear from your friend and you can reserve some time for rebuttal if that’s seems desirable to you?

Mr. Tuttle.

Allan A. Tuttle:

Mr. Chief Justice, may it please the Court.

Allan A. Tuttle:

As counsel has indicated this is a prosecution under 18 U.S.C. 871, threatening a life of the President.

The arguments of counsel on appeal have been principally that the threats uttered were not true threats or that the trial court misconceived the statute or finally that if the trial court did not misconceived the statute, the statute as applied violated the First Amendment.

We disagree with all of these contentions.

We believe that the threat was true threat.

We believe the trial court’s instruction was correct and we believe that the statute as applied did not offend the First Amendment.

However, as the Court has raise in questions now, there are some procedural difficulties with this conviction which might justify this Court in reversing the conviction.

However, I would stress that these procedural problems have nothing to do with the facts of the case, the evidence before the jury, the instructions or the law on the merits.

In order to understand the facts of the case and the procedural problem that arose, I would like to elaborate in just a few words some of the facts of the circumstances and the evidence introduced at the trial.

I want to elaborate on that because I think it’s important to realize that although for instance it is true that Mr. Rogers had a history of alcoholism, every witness testifying on the matter at trial with respect today in question testified that Mr. Rogers was not drunk at the time he made the statements in question.

Moreover, there was expert testimony at trial from a qualified psychiatrist as to the competence of Mr. Rogers at the time he made the statements.

I’d also like to stress that the record is replete with threats to kill the President, to take the life of the President.

There are counts in which Mr. Rogers —

Thurgood Marshall:

Well, are those threats made to any private individual or were they’re made to the police?

Allan A. Tuttle:

They were made to both, Mr. Justice.

I can give you record citations for killings as for threats of killing as they were made to private individuals.

Thurgood Marshall:

Now that I’ve interrupted you.

You interpreted, when is he going to kill the President?

Allan A. Tuttle:

He said he was going to do that in Washington DC.

Thurgood Marshall:

And he was in Shreveport which is a little ways away?

Allan A. Tuttle:

He was in Shreveport.

Thurgood Marshall:

It’s a little ways from Washington.

Allan A. Tuttle:

That’s no question, it’s a little way.

On the other hand, it’s also true that the President travels in many directions and goes to many states.

Thurgood Marshall:

Is it also true that when he goes in those direction they lockup and that’s like him.

Allan A. Tuttle:

If there is a knowledge of the threat and if the Secret service has adequate advanced information they would take precautions.

But I do suggest that the President travels widely.

I suggest for instance that Shreveport is not very far from Dallas.

Lewis F. Powell, Jr.:

Did Mr. Rogers say he was going to walk to Washington?

Allan A. Tuttle:

He said that and I construe that as meaning that he was going to hitchhike because in the statement to the police officer.

He said that he was going to hitchhike to Washington and later on the same officer testified he said he was going to walk.

Allan A. Tuttle:

In his conversations with a customer Mr. Buchanan, he asked about hitchhiking and I construe those words to mean hitchhiking.

Although, in fact, he did say he was going to walk.

Lewis F. Powell, Jr.:

And the police did not elect to arrest him or take him in custody?

Allan A. Tuttle:

The police did in fact take him into custody, Mr. Justice.

Lewis F. Powell, Jr.:

But didn’t they release him or that any bond?

Allan A. Tuttle:

The record is not entirely clear on that.

The testimony of the arresting officer is somewhat at variance with the testimony of the detective at the police station.

The arresting officer testified that he was taken to the Veterans Administration Hospital and had a pull placed on him which merely means that the hospital attendants would notify the police at the time he was to be released.

Lewis F. Powell, Jr.:

Was there any charge lodged against him by the Shreveport police?

Allan A. Tuttle:

No charge was lodged against him although the Shreveport police did notify the Secret Service of the fact of this threat and it was on at the behalf of the Secret Service that Mr. Rogers was then arrested.

Thurgood Marshall:

Was it agreed that he hadn’t violated any Louisiana law?

Allan A. Tuttle:

I can only testify — I can only recount what the record states.

The record states that no charge was lodged against him.

Now, that may have been an inference on the part of the police that no Louisiana law was violated or it may have been a feeling on the part of Louisiana police that the crime if any was not a crime against the State of Louisiana and if it was to be punished, it should be punish by the federal authorities.

Again, I wish to stress that in many — in several of these conversations there were in fact threats to kill the President and they were unconditional threats at least in the words given.

When the police officer inquired about the question whether there have been threats, the defendant Rogers again made a threat to kill the President saying, “I’m going to Washington, I’m going to beat his ass off better yet I’m going to kill him.”

The police officer testified that he was not scared by these remarks but he said he was shook up because he said we had presidential assassinations and we’ve attempted assassinations and I didn’t know whether he was mad or whether he was serious.

All of the witnesses testified that the defendant appeared serious when he made the statements he made.

Potter Stewart:

By mad, do you think he meant angry or crazy?

Allan A. Tuttle:

I think that would be an inference on my part but I would assume he meant crazy.

Of course, a person being crazy does not necessarily mean that he is not a threat to the lives of other people.

William J. Brennan, Jr.:

Mr. Tuttle, your suggestion that this conviction we set aside be accompanied where the statement that if it is set aside, the Government will not retry him some of the things you were saying seem however inconsistent with that determination.

Why is it you would retry him if you set aside?

Allan A. Tuttle:

Well, that judgment has been made on reflection on the facts of the case, on the —

William J. Brennan, Jr.:

Well, this is what the Government also thinks, did it not?

Not a real threat.

Warren E. Burger:

I suppose —

Allan A. Tuttle:

I didn’t — Mr. Justice, I didn’t say that anybody thought it was not a real threat.

That — that matter was submitted to the —

William J. Brennan, Jr.:

I know you didn’t.

William J. Brennan, Jr.:

I’m suggesting that — is that — if you’re not going to retry him there must be some element of a judgment that it is in fact and not — not a real threat.

Warren E. Burger:

I suppose also the Government is taking into account that he is been in prison for two years or more already.

Allan A. Tuttle:

He has been imprisoned for more than two years.

He served his sentence under the original judgment of the conviction.

And that is a consideration that the Government has taken into account.

William H. Rehnquist:

Was he still being confined other than separately for some alcoholic problem?

Allan A. Tuttle:

Well, he is on — the sentence to included a five-year condition of sentence of probation which included as a condition thereof participation in the Alcoholics Anonymous Program.

So, the case is not moot.

He has that constraint.

Thurgood Marshall:

Well, why would a man who was not under the influence of alcohol wasn’t drunkard, why was his probation put on Alcoholics Anonymous?

Allan A. Tuttle:

Because the man has a history — a chronic history of alcoholism.

The question —

Thurgood Marshall:

But I mean he is a chronic alcoholic.

Allan A. Tuttle:

There is evidence to that effect.

Thurgood Marshall:

And —

Allan A. Tuttle:

And yet there is evidence that he didn’t —

Thurgood Marshall:

Well, there must be something wrong with anybody to goes into it jail — I mean, a precinct, the station of police and confesses to a crime that the only way he could commit it was by confessing to it.

Allan A. Tuttle:

But the crime we’re dealing with — the crime that presents the background to all of these law and in our concern is the crime of presidential assassination and I would assume we would all agree that any one who — would even contemplate such a crime would be in some sense unstable and then some sense are not.

Thurgood Marshall:

Well, he doesn’t been offered not to go in and then confess, wouldn’t he?

Would he be a great aim that to just go in and say, “I insist” and you emphasize the factors that overrule here, I’m going to kill him, I going to kill him, I going to kill him.

He say, “Please lock me up and put me some place” isn’t it?

I don’t understand how you can do that and come here to say you’re not going to retry him.

Allan A. Tuttle:

We are not going to retry him because of all of the circumstances of the case.

There are circumstances, Mr. Justice, which I haven’t get to mention which include the fact that there is a question in this case as to whether the jury returned an unconditional verdict.

Thus, we’re not even absolutely sure that we have a fact finding by a jury that these were serious threats.

That is another considerations and addition to the ones I’ve already mentioned.

I would like to, if I may, turn to those particular circumstances because they color the question that the Court is asking and I think the Court should be aware of the circumstances which lead us to believe that the conviction in this case may in fact not have been an unqualified conviction.

After the trial judge instructed the jury, we believe, correctly instructed the jury, the jury deliberated for two hours and then sent the trial judge a note.

The note asked the Court whether the Court would accept a verdict of “guilty as charged with extreme mercy of the Court.”

Upon receiving that note, the trial court without consulting counsel instructed the marshal that the Court’s answer was in the affirmative.

Allan A. Tuttle:

This note in the Court’s answer appears at page 52 of the appendix.

Five minutes after receiving the Court’s answer, the jury returned the verdict of guilty in the form I’ve just discussed, guilty as charged with extreme mercy of the Court.

Ordinarily, it would be the Government’s view that a recommendation of mercy of this kind is mere surplusage could be discounted and would not affect the validity of the verdict.

Here however, we have in addition to the form of the verdict the fact that it was arrived at by a unilateral communication from the District Court to the jury.

In our view, the jury’s question about whether the Court would accept such a verdict was in effect a request for further instruction and we think that the proper instructions to be given under those circumstances would have been that the jury has no sentencing function that it must reach its verdict without consideration of the matter of sentence and that any recommendation it did make would not be binding upon the trial court at the time of sentencing.

Moreover, we believe that before any response is made, counsel should be informed and counsel should be heard from.

Warren E. Burger:

I suppose you’re suggesting that any alert defense counsel in those circumstances would have insisted on an unqualified verdict in order as he would hope that this would force a verdict of not guilty?

Allan A. Tuttle:

I would assume so, Mr. Chief Justice, because if the jury is talking about mercy, he may feel that they are taking the possibility of punishment into the account to break a deadlock or to resolve a question in favor of guilt.

And that’s why we think it’s important that counsel should be heard from and we feel as a textural matter that a response without informing counsel arguably will in fact does deprive the defendant of the right to be present at every stage of the trial as is guaranteed by Rule 43 of he federal rules of criminal procedure.

William J. Brennan, Jr.:

So, I gather Mr. Tuttle your view is that this falls within the category of plain error which maybe addressed even though objection was not made.

Allan A. Tuttle:

And that is our view, Mr. Justice, and for the reason that precisely because this was a unilateral communication to the jury which counsel was not informed about, they were not in the position to object to it and not knowing about it, it is hard for us to say that they knowingly waived any objection that they might have to this circumstance.

We pointed out in our original papers on the petition the form of the verdict as raising a question all by itself and suggested that arguably it was waived.

It was in the preparation of the brief on the merits that we discovered that in addition to the form of the verdict.

There was the fact that it have been arrived at by a unilateral communication from the judge and those two things taken together raised in our mind a substantial question is to whether the verdict was in fact unqualified.

And we offer those facts for the Court’s consideration.

I am prepared if the Court desires to discuss the Court’s trial instructions.

The elements of the offense as we believe them to be, because we believe that Court correctly instructed the jury, and I am prepared if the Court desires to discuss the First Amendment implications of the case.

I would ask the Court whether it has any questions in any of these areas or desires to hear from the Government further.

Warren E. Burger:

You’re free to submit on briefs on those questions counsel unless there are any questions from the bench.

William H. Rehnquist:

Well, I have a good deal of question Mr. Chief Justice.

I take it that you’re here arguing in support of affirmance and that there have been First Amendment questions raised I would like to hear your presentation of them.

Allan A. Tuttle:

Well, very well Mr. Justice, I’m prepared to proceed with that.

Byron R. White:

Well, why wouldn’t you — I think we heard the government more effective condition (Inaudible)?

Allan A. Tuttle:

I don’t understand your question Mr. Justice, excuse me.

Byron R. White:

Well, I’ve just remarked you, I’ve never heard the Solicitor General’s office take position like this in this Court asking the Court if it has any questions and otherwise we won’t argue the case.

Allan A. Tuttle:

Well, Mr. Justice —

Byron R. White:

Have you — have you heard it before?

Allan A. Tuttle:

Mr. Justice, I apologize if my suggestion is an inappropriate one to the Court.

Byron R. White:

You don’t use the — except the cases on briefs.

Allan A. Tuttle:

I — the reason why I made the suggestion was merely because we thought the case would probably be disposed of on the ground that we had raised.

Byron R. White:

Well, it wasn’t.

Allan A. Tuttle:

It was not and therefore, I suggested that I was prepared to proceed and I apologize for putting it in the form of a question rather than a continuing presentation.

The trial court instructed the jury that the — on the elements of offense in stating to the Court inconsistent with the — stating to the jury consistent with the Watts decision that only a true threat would be a threat within the contemplation of the statute and that a political argument or idle talk or a jest would not violate the statute.

On the question of intent which is the central question in the case, the Court instructed the jury that a threat is a willful if the maker voluntarily and intentionally other’s words is a declaration of an apparent intention to carry out the threat.

The Court also used the words and I’m leaving out a few words here that the defendant intentionally made the threat that a reasonable person would foresee would be interpreted as a serious expression of intent.

The Court instructed the jury that actual intent to harm was not an element of the offense.

In our view, these are correct instructions.

As we have seen the issue in this case, the issue particularly in the light of the verbal conflict amongst the Circuits given circulation by the Patillo decision.

The issue was whether the statute requires a subjective intent to harm the President or whether the statute prescribes words which objectively considered would appear to be serious.

Petitioner’s reply brief, however, does not urge this distinction and does not urge that actual harm to the President ought to be an element of the offense.

Rather, they urged that the specific intent required has specific intent that the threat be communicated to the President.

We don’t think that either of these elements are in the statute either by congressional intention ought to construed as a matter of constitutional limitation.

We begin with the words of the statute, the words “punishes a person who knowingly and willfully makes a threat to take a life favor and flick bodily harm upon the President of the United States”.

The words “knowingly and willfully” these adverbs modify and refer to the act of making the threat and textually in any event do not require that the maker have an inward desire either to harm the President or to have the threat communicated.

We believe that the harm caused by a threat is caused by the mere utterance of the threat in circumstances where it would generally be considered serious.

If two persons are similarly situated then utter the same words which are apparently serious threats, the effect of these words are the same even if one of them harbors an inward desire to harm the President and the other does not.

Where a threat is objectively serious it can’t be ignore and requires a responds from those charges with the protection of the President.

In fact, it could endanger the President by diverting those resources.

If we — we don’t think that the sole purpose of the statute was to prevent harm to the President by convicting people who threaten to kill the President with an intention to carry it out.

The House Report on a 1916 Bill which became the law states the purpose of the President — states the purpose of the statute as protecting the President from threats or violence which would restrain or coerce him in the performance of his duties.

That restraint or coercion to the extent that it occurs, occurs whenever the words are objectively serious and that restraint and coercion is neither augmented nor diminished by the subjective intent of the speaker.

Where the threat is apparently serious, the secret service has to investigate and to the extent that it is sidetracked by a bluff is diverted from the supremely serious business of defending and protecting the life of the President of the United States.

Our view that the term “willful” refers to the intent to make the threat rather than an intent to harm the President is we believe supported by the legislative debate on the Bill which became the law which is the predecessor to 871.

Among the things you will find in that legislative debate is a discussion of an example of an individual who finds a document containing a threat and mails it to someone as a matter of news.

Congressman Volstead urged that the word “willful” be retained in the statute in order to assure that such a person sending — knowingly sending such words but not intending a threat would be beyond the scope of the statute.

In our view, therefore, Congress’ intent was to punish one who knowingly and intentionally makes a threat under circumstances which objectively viewed would be considered serious and sincere.

Warren E. Burger:

I suppose that provision that Mr. Volstead request on the Congress would also protect the newspaper or that in these days a radio or television commentator who repeated the —

Allan A. Tuttle:

As a matter of news, I think that would fall precisely within that discussion and that shows the point of having the word “knowingly and willfully” in the statute in our construction of the statute.

Of course, the statute does punish the utterance of mere words and therefore has to be waived against the First Amendment’s guarantee of freedom of speech.

Thurgood Marshall:

Well, before you get there Mr. Tuttle, during the two years he was in jail, suppose he made the same threat, will he violate the statute?

Allan A. Tuttle:

I would have to — before I could answer that question, know the circumstances under which they were made.

If the statement was, “As soon as I get out of here, I’m going straight to Washington.”

Thurgood Marshall:

The exact same statements you made here.

Allan A. Tuttle:

I’m going to Washington.

Thurgood Marshall:

No sir.

The exact same statements he’s charged with making.

He repeated that in the jail.

Allan A. Tuttle:

If he repeated them as a matter of saying, “I was convicted for the following words” or in circumstances which led — which the fact finder —

Thurgood Marshall:

Mr. Tuttle, I said he says the exact same words and nothing else.

Now, can I get an answer?

Allan A. Tuttle:

I would think that those would probably be words of repetition of explanation of what he had said before and would not constitute a true threat.

But I do believe that a person who was in custody and under restraint could in fact make a true threat.

In the hypothetical you put, my judgment would be that that would probably not being a threat.

Thurgood Marshall:

How about now where he is now in a place as nicely called an alcoholic place, suppose he repeats in there and when you leave there I’m going to take you to the cell and so.

Some place I think he can say it’s not a threat, am I right?

Allan A. Tuttle:

That’s correct.

The example I gave — you gave I suggest that it was probably not a true threat under the circumstances that you have hypothesized.

Returning for the brief for moment to the First Amendment issue in the case which we do not consider a serious one.

It has long been clear that the First Amendment does not confer absolute protection for all utterances in all circumstances and at all times.

Some words by their very utterance create an evil against which the legislature can act.

A classic example and one that shows that the subjective intent of the maker is not always relevant to the consequences of speech is Justice Holmes’s example of a man who falsely shots fire in the theater and causes a panic.

This Court said the Chaplinsky case, there are certain well defined and narrowly limited classes of speech the prevention and punishment of which have never been thought to raise serious constitutional problems.

In our view, if there is any such class of speech, it includes true threats to kill the President of the United States.

A true threat is not advocacy, it’s no part of the exposition of ideas, it doesn’t seek to persuade and is not neutralized by a verbal response.

It thus does not implicate the central policy of the First Amendment which is that speech can rebut speech and propaganda answer propaganda.

A true threat is punishable because it creates an evil which Congress can prevent.

As I’ve indicated, a threat demands a response from those charge with the President’s protection.

It diverts the resources of that agency and the process tends to limit the President’s activities or in the words of the House Report “restrain or coerce him in the exercise of his constitutional duties.”

There is a perhaps another consideration.

The federal laws concerning threats are not limited to threats against the President of the United States.

Allan A. Tuttle:

18 U.S.C. Section 875 and 876 for instance forbids the interstate communication in mailing of threats to do bodily injury.

Threats of this kind and I would submit a fortiori threats to do bodily harm to or kill the President of the United States are punishable because of the anxiety, the fear, the turmoil and the potential for violence that they create whether or not they are heard by the intended victim.

Advocacy is wholly different in our view.

Advocacy is protected by the Constitution even when it creates anger or resentment or uncertainty or unrest.

But threats are different in their consequences.

Threats are different in the emotions they evoke and in the anxiety that they create.

Potter Stewart:

As that well that would be true about threat they communicated to the target of the threat but is it going to be true of a threat against acts when made to A, B and C?

Allan A. Tuttle:

I believe it is.

In fact, we cite in our brief some cases which have been decided under the statutes I’ve just mentioned where the threats have been communicated to third parties.

One in the case of threat to a mother to harm her son and another case they call to the FBI with a threat to kill some third party.

I think that these threats do create a climate of anxiety particularly a threat to kill the President of the United States in mind just speaking of a true —

Warren E. Burger:

You’re speaking of an established procedure that whenever such threats come to the notice of local police they are required — refer them to the FBI and the Secret Service?

Isn’t there something in the report of the Warren Commission on President Kennedy’s assassination to that effect?

Allan A. Tuttle:

The Warren Commission report does indicate that threats to the President constitute a serious drain on the resources of the commission.

And we feel — I beg your pardon, I simply misspoke.

A serious drain on the resources of the secret service in responding to these threats and investigating them and trying to determine whether they’re serious and of course in most instances the answer is you cannot tell whether they’re serious or not.

In our view, threats are simply not part of the area of protected speech.

The Constitution requires that the public debate be robust and uninhibited and wide open as this Court said in the New York Times case.

But there is no place in the public debate for true threats to commit murder.

The evil against which the statute is aimed is truly a grave one and the restrictions which the statute imposes on speech are quite minor to the extent that the statute causes people to avoid language which might be objectively considered a threat.

We submit that the incursion on protected speech is minor and permissible.

I’ve already indicate —

Potter Stewart:

Has any court ever taken the view in construing this statute that it applies only to communications directed to the President or the other —

Allan A. Tuttle:

No, very early on in the very earliest cases on rulings on demurs to the indictment.

It was established that there was no requirement of communication to the President and no court has so required to the extent that my research has developed.

I thank the Court.

Warren E. Burger:

Do you have anything further Mr. Parnell?

Ralph W. Parnell, Jr.:

Yes, Mr. Chief Justice very brief in reply to counsel as to he inferred that the facts are going to speak for themselves the record will speak for themselves.

He inferred that Mr. Rogers was hitchhiking to Washington when in fact he was trying to hitchhike to Texarkana which is where the man resided at the time.

He was not arrested by the local police department in Shreveport.

Warren E. Burger:

What crime could he have been arrested for in Shreveport?

Ralph W. Parnell, Jr.:

Disturbing the peace is as close as we could pen it down.

Warren E. Burger:

Until after Mr. Kennedy was assassinated, was there any federal statute making at federal crime to kill a president?

Ralph W. Parnell, Jr.:

Until —

Warren E. Burger:

Until after Mr. Kennedy was killed?

Ralph W. Parnell, Jr.:

To actually kill a president?

Warren E. Burger:

— yes.

Ralph W. Parnell, Jr.:

I believe that’s correct, Your Honor.

Further, counsel would have this class of speech in its purest form, the words “I will kill the President” thrown out from under the umbrella of the protection of the First Amendment wherein his brief on page 19.

He says that a declaration or announcement for example that “the President must be killed and I will do it” may take on a different character when made during the political speech.

It is to be sure accrued offensive way for the speaker to make his point of political opposition.

We feel like that Mr. Rogers own this particular raining morning in March three years ago was doing no more than very crudely chastising President Nixon for his trip to red China and that under the situation — under the circumstances that he was not a true threat to the President of United States.

He did not utter a true threat to the President of the United States and certainly should not be convicted under the statute.

I thank the Court.

William H. Rehnquist:

Mr. Parnell, would you turn to page 52 of the brown appendix if you have that in front of you that has that entry entitled handwritten note then apparently the foreman’s signature and then below that what appears to be Judge Dawkins response to it.

Now, I take it as the appellant from the District Court’s judgment of conviction you were responsible for preparing the record in the Fifth Circuit, were you not?

Ralph W. Parnell, Jr.:

That’s correct, Your Honor.

William H. Rehnquist:

And I presume this was a part of the record that you’ve prepared for the Fifth Circuit?

Ralph W. Parnell, Jr.:

Your Honor, I don’t believe it was in the record at the Fifth Circuit.

William H. Rehnquist:

Well, how did it get into the record then?

Ralph W. Parnell, Jr.:

I never knew that this note existed.

In fact, I only saw this note for the first time when we were preparing this brief here.

It’s the first time I saw it.

William H. Rehnquist:

How are records prepared on appeal from the District Court to the Fifth Circuit?

Ralph W. Parnell, Jr.:

Your Honor, we had a problem with that — with what you’re brining up right now.

The procedure was somewhat confused.

In fact, at one point we had a problem in locating part of the record.

William H. Rehnquist:

Just couldn’t find it?

Ralph W. Parnell, Jr.:

Couldn’t find it.

William H. Rehnquist:

So far as you know, you did not designate this is a part of the record.

Ralph W. Parnell, Jr.:

No.

William H. Rehnquist:

And you have no idea how it got —

Ralph W. Parnell, Jr.:

To the Fifth Circuit.

William H. Rehnquist:

Yes.

Ralph W. Parnell, Jr.:

No.

William H. Rehnquist:

And you have no idea how it got to be here?

Ralph W. Parnell, Jr.:

No, I do not.

William H. Rehnquist:

And for that matter, you’re not sure that really is genuine, I suppose?

Ralph W. Parnell, Jr.:

I would not doubt the genuineness of it, no.

William H. Rehnquist:

Why not if you never seen it before?

Ralph W. Parnell, Jr.:

I have seen it.

The first time I saw it was when we begin preparation of our brief to the United States Supreme Court.

And it was at that time a part of the exhibits that were introduced, and that’s where I found it.

William H. Rehnquist:

The exhibits introduced where?

Ralph W. Parnell, Jr.:

At trial.

William H. Rehnquist:

Well, but I would thought this would’ve occurred after the trial?

Ralph W. Parnell, Jr.:

Yes, Your Honor.

We had two separate if I may — we had two separate files.

We had the actual record which was the printed word or the transcript of what transpired.

And then we had another file that had exhibits in it that were introduced in the file such as I believe we introduced the psychiatrist report.

We introduced the —

William H. Rehnquist:

You offered to the judge and goes to the jury and submit them.

Ralph W. Parnell, Jr.:

Right, evidence.

That’s correct.

And it was in this file that I found the note for the first time.

Harry A. Blackmun:

Mr. Parnell, were you present at the time the guilty verdict was brought in?

Ralph W. Parnell, Jr.:

Yes.

Harry A. Blackmun:

On page 3 of the appendix is the list of relevant docket entries and it recites the return of the verdict and then says this.

“The jury ordered told verdict ordered entered and so forth” the Court ordered the note from the jurors signed by the foreman regarding the verdict to be rendered ordered file in the record.

The defendant released on his present bond.

Harry A. Blackmun:

You have no recollection of that?

Ralph W. Parnell, Jr.:

Your Honor, I do not.

Harry A. Blackmun:

And you have — you didn’t examine the Court’s, these docket entries in your preparation for appeal to the Fifth Circuit?

Ralph W. Parnell, Jr.:

Yes, I did.

Harry A. Blackmun:

But you didn’t see this?

I do not see that.

I thank the Court.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.