Felonious Verses: Louisville Man Charged With Threatening The President In a Poem

An alleged neo-Nazi in Louisville is pushing the constitutional envelope with a poem that resulted in a criminal charge as a threat to kill the President. Johnny Logan Spencer Jr. is charged with threatening the life of the President with his poem that refers to killing a black president but not Obama by name.

I have long harbored serious constitutional concerns over the federal law used to investigate and charge people for threats against the President. The Justice Department takes the position that even saying “I wanted to shoot that man” in reference to a president is a federal crime as opposed to free speech. Such expressions are juvenile and common in our society.

The case against Spencer, 27, is based on a sixteen-line poem entitled “The Sniper” including the statement “DIE negro DIE.” Assistant U.S. Attorney Philip Chance insists “[t]his is a threat by one individual against another because he is the president and because he is black.”

In fairness to Chance, this is consistent with past prosecutions. However, I strongly disagree with the premise of these prosecutions. The poem is vile but it is also an act of free speech and should be protected by the Constitution. It is possible to be both vile and protected speech.

Spencer faced five years in prison and a $250,000 fine for writing and publishing a poem.

What is particularly disturbing is that Oliver Stone can do a movie on killing a black president but Johnny Spencer cannot do a poem on the same premise. It is an example of criminalizing speech that should be anathema to Americans — regardless of how unsympathetic we are to the defendant.

For the full story, click here.

50 thoughts on “Felonious Verses: Louisville Man Charged With Threatening The President In a Poem”

  1. Buddha,

    Makes me want to spit in the eyes of the decision makers on this….

  2. Another attack on the 1st Amendment.

    “Reporting from Washington – The Supreme Court struggled Tuesday to resolve a conflict between the free-speech rights of a Los Angeles-based advocate for international peace and a broad anti-terrorism law that makes it a crime to advise a foreign terrorist group, even if it means advising its members to seek peace.”

    Read the rest at: http://www.latimes.com/la-na-court-terrorism24-2010feb24,0,7914820.story

  3. “I haven’t as yet seen the poem in its entirety so I can’t look up the decision elaborating the tests that must be met and do a comparison. Since this is the second printing of the poem it would seem that broadly, it has not previously met the test since an assassin motivated by the first printing hasn’t rushed out after reading it to assault the President.” lottakatz

    True and that no doubt will go to his defense. If he can prove it was not designed to foment violence or a threat of his own then that would no doubt acquit him. But I also know their is likely more to this case, and the Secret Service likely acted because they perceived either an immediate threat or an attempt to incite others to violence. Which no doubt the latter being the case.

    After all look at the context where it was posted. Look at the audience. A bunch of heavily armed, drugged up anti-govt, neo nazi anarchists. There’s a point where an outcome becomes obvious and the Secret Service may have concluded this was that point.

    Now I’m with you that we don’t need to erode our First Amendment rights, but we also don’t need to ignore the obvious just to make a show of support for them. We need to weigh those rights in contrast to the “context” and “circumstances” of what is being said. And if that context is clearly designed to get someone killed, then the First Amendment neither protects you, nor should it.

  4. “Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

    http://en.wikipedia.org/wiki/Brandenburg_v._Ohio” – lottakatz

    Yes I am well aware of the Brandburg decision(which is on the same wiki page I already quoted from) which is why I referenced it when I pointed out that the courts decision outlined in the Wendell Holmes Jr “crowded theater” statement was limited in a later decision. But the concept still remained valid and has been used by the SCOTUS as a benchmark ever since. That’s why the statement “you can’t shout fire in a crowded movie house” is so well known. Because you can’t.

    At least not falsely.

    That part of the decision was never overturned and still holds weight today. Think I’m wrong? Then go down to your local movie theater, wait till the seats are all filled, then start screaming “fire”.

    Then see how far your First Amendment protections carry you.

  5. “Political speech is still protected in the main” – lottakatz

    Sure. But political speech is not a license to threaten to assassinate the President, or to encourage others to do so.

  6. “I don’t think the situation is viewable in a vacuum though I’m not accepting that slander or lible is equivilent with political speech.” – lottakatz

    Well that’s good because I didn’t say slander or liable is equivalent with political speech. I merely pointed that these were forms of speech that are not free.

    Speech that has a legal cost to it cannot be considered free, thus slander is one prime example that any attorney can relate to where the first Amendment protections do not protect you.

  7. I’ll see your Illegal War for Exxon’s Profits and raise you some more fascism.

    http://www.nytimes.com/2010/02/23/business/23donate.html?hp

    http://www.nytimes.com/2010/02/23/your-money/credit-and-debit-cards/23fee.html?hp

    “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

    He has refused his Assent to Laws, the most wholesome and necessary for the public good.” – Declaration of Independence (emphasis added)

    Cause and effect.

    Put that in your subservient pipe and smoke it. The office and person of the President are unimportant compared in context to the integrity of the Constitution. Justice for all or justice for none. Bad poetry and people flying into IRS offices is just the beginning of the end for the fascist usurpers of the Constitution. If you don’t like the car wrecks, don’t watch the race, but quit whining about the “safety” of the drivers who are purposefully driving the car over the rights and lives of American citizens in favor of their corporate masters pocketbooks. Especially if your concern for safety is from words. Ooohhhh, the big bad words might inspire someone to kick someone’s ass! But the fact that the person getting their ass kicked has been stealing and killing the very people they are supposed to protect has nothing to do with it. Uh huh. Because the criminals have a “title”. Well fuck them and fuck their title. No man is my king. That includes President “Who Cares About the Constitution” Obama.

    Act like a criminal and harm others for profit and you earn the hatred you engender – be it from another bad guy or not. It’s that simple: evil acts breed social discord no matter who the instigator is be they President or skinhead dipstick.

    The law has become lawless and inequitable.

    These things are self-evident.

  8. Gerty: “And of course speech which places others in immediate danger can also be considered not free, as we learn with the crowded movie house scenario outlined by Oliver Wendall Holmes in Schenck v. United States. Holmes argued that it presented a clear and present danger to the United States to hand out flyer’s opposing the draft, thus was not protected speech under the Constitution. The decision though it was later limited in its application to “imminent lawless action” yet that still seems to fall in line with the scenario we are facing today.”

    —-
    The per curiam [SCOTUS]majority opinion overturned the Ohio Criminal Syndicalism statute, overruled Whitney v. California, 274 U.S. 357 (1927), and articulated a new test — the “imminent lawless action” test — for judging so-called seditious speech under the First Amendment:

    “ …Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

    http://en.wikipedia.org/wiki/Brandenburg_v._Ohio

    I haven’t as yet seen the poem in its entirety so I can’t look up the decision elaborating the tests that must be met and do a comparison. Since this is the second printing of the poem it would seem that broadly, it has not previously met the test since an assassin motivated by the first printing hasn’t rushed out after reading it to assault the President.

    I don’t argue against your concern though, I am very concerned at the level of hostility against the President. I think that it’s a problem that has to be worked from a targeted law enforcment direction, not by eroding the First Amendment.

  9. Gerty, I do understand your concerns and share your trepidation over the growing hostility to the President, fueled in major part by racism hiding under the banner of political opinion. I don’t think the situation is viewable in a vacuum though I’m not accepting that slander or lible is equivilent with political speech.

    When the compulsory pregnancy folks started printing ‘Wanted’ posters and posting the names and home addresses of medical providers it could be argued that the death of George Tiller was a foregone conclusion. Except. Increased hostile rhetoric should have been met with at least an equivalence in scrutiny and appropriate response by law enforcement. As the events surrounding Dr. Tillers death played out though it is obvious that law enforcement totally dropped the ball regarding his assailant.

    I do not believe Dr. Tiller had to die in order for his assailant to legally neutralized based on several reports of the history of unpunished criminal activity his assailant committed against clinics and was apprehended for previously. Tillers death wasn’t a failure of the First Amendment but of law enforcement including the FBI. The words, known associates and prior bad acts of Tillers assassin (as well as the rhetoric and activities of those associates) should have saved Tillers life, not preceded his murder.

    The problem with context based assessments regarding speech is that context is a vagrant quality that is dependent on the politics of the day. People were demonized as traitors for rather bland dissent against the decision to invade Iraq. The Homeland security laws have been used to spy on reporters and groups that have been critical of the war and torture. Photography of public landmarks is treated as a crime.

    There is a general encroachment on the First Amendment that is context based and does not reflect a valid need. Same for the Fourth Amendment; I will never fly again if possible because I simply will not be virtually strip searched without a warrant issued for probable cause. The deterioration of all of our Constitutional rights over the last 9 years has been context based- remember “9-11 changed everything”? That was an actual argument used to usher in the Homeland Security abuses to our rights. If free speech and association becomes as context based as due process and privacy has become the Republic is utterly lost. If it is not already.

    From linked article: “[Assistant U.S. Attorney Philip] Chance acknowledged that the U.S. Supreme Court has ruled that political speech in which a president was threatened is protected under the First Amendment.

    In 1969, the court reversed the conviction of a young African-American man who said at an anti-draft rally that if “they ever make me carry a rifle, the first man I want to get in my sights is LBJ,” referring to President Lyndon Johnson.

    But Chance argued that in the poem, Spencer doesn’t take issue with Obama’s policies or ideology; he advocates killing the president only because he is black.

    Chance said the nation has a “valid, overwhelming” reason to protect its chief executive that must be weighed against free-speech rights.”

    Political speech is still protected in the main. Chances’ statements indicate a contextual change in the way speech will be viewed. Free speech will be viewed based on the need to protect individuals, specific individuals occupying specific positions. That is a very slippery slope. Once the High Court determines that speech can be criminalized based on a position occupied by the object of the speech, the only question is how long it will be before other such positions, classes and institutions are added and under what circumstances. The protection could be extended beyond that to activities and policies.

    Paranoid as that may sound I have seen nothing in the last decade that persuades me that the trend is not eminently possible. We have an activist court and a government that holds itself and favored special interests unaccountable for even the most monstrous deeds and policies. I can envision a time, at the bottom of that slope, when the rationale that editorials criticizing an invasion SHOULDN’T be written to protect the morale and well being of the troops (as was argued during the Vietnam war as well as the current wars) will become a legal PROHIBITION against such editorials opposing the decision as well as its architects.

    Any citizen should be able to stand on a street corner with a flag burning in protest in one hand and a megaphone in the other making the case that the good of the Republic will be advanced if someone assassinated Joe Lieberman before he does more harm to the country IMO. Words are words, not actions.

    As a point of comparison, I don’t value the Second Amendment any more than the First. Why is it that the argument ‘Guns don’t kill people, people kill people’ respected as valid (and I believe it is) but words would or could or should be treated differently? I don’t think they should. OK, I’ll beat AY or BIL to the grim punchline, Words don’t kill people, people with guns kill people. Hmmm, maybe I shouldn’t have mentioned the Second Amendment.

  10. Quick correction. I left the “Jr” out of my Oliver Wendell Holmes quote so please consider it corrected. Thank you.

  11. “It shames me to say as a libertarian—but maybe we just look the other way this time. Maybe its okay if the neo-Nazi’s have a rough time during the Obama administration.” – Wayne Jarvis

    I disagree that the choice alternative is to “look the other way”.

    I agree that our civil right to free speech needs to be honored but I think that can be accomplished by honoring that right in the light that it has been interpreted by the Court. Essentially free speech rights fall into the “my right to swing ends where your nose begins” as it has been interpreted. If your speech does someone else demonstrable harm then it is not protected. That lack of protection varies with the speech and the nature thereof. For example, I’m sure no good Lawyer in here worth their bill rate would argue that slander is protected speech. There are penalties for slandering someone, thus it is not “free” speech. Its not free if it costs you something. Another form of speech not protected are threats. Threats can bring both civil and criminal penalties, thus they are not free speech.

    And of course speech which places others in immediate danger can also be considered not free, as we learn with the crowded movie house scenario outlined by Oliver Wendall Holmes in Schenck v. United States. Holmes argued that it presented a clear and present danger to the United States to hand out flyer’s opposing the draft, thus was not protected speech under the Constitution. The decision though it was later limited in its application to “imminent lawless action” yet that still seems to fall in line with the scenario we are facing today.

    And of course I’m not the only one to notice this. I’ve heard Rachael Maddow, Keith Olbermann, Arrianna Huffington, Chris Matthews and many others on the left speak out about this as well. People who are normally strong free speech advocates. There’s a clear trend by the right wing to paint a target on this President early on, to stir up the crazies and then let the chips fall where they may.

    Someone has to do something about that.

    That doesn’t mean we abandon our ideals and rights when the going gets tough like the republicans did. But it does mean we need to balance them with the real and present danger that this sort of speech is presenting to our President. In the words of Oliver Wendell Holmes:

    – “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” – Oliver Wendell Holmes – Schenck v. United States 1919

    Surely threatening or fomenting others to assassinate the President of the United States falls under the “substantive evils that Congress has a right to prevent”.

  12. “I might not like their speech, I may feel it contributes to a hostile and coarse level of discourse but I’m for protecting it.” – lottakatz

    Suppose it contributes to more than a hostile and course level of discourse?

    We know if you’re in a crowded movie theater that shouting “fire” is not considered Constitutionally protected speech. The reasoning of course being that doing so would create a clear and present danger to the other patrons of the theater. So the question that begs is if we shout “assassinate” in a heated and volatile environment regarding the President, are we creating a clear and present danger to his life? I think the answer is obviously yes however I am aware some argue that the threat is not “immediate”. The difference of course being the movie theater scenario is immediate while according to some the threat to the President is abstract and not immediate. And in normal circumstances that might be the case, however these are not normal circumstances by any measure of the word. President Obama has been not only dismissed by the republican party he’s been made a target. They foment fear and sedition, openly talking about it. They use thinly veiled threats like “time to water the tree of liberty” and openly call for opponents of the President to bring guns to their rallies. Particularly those in close geographical proximity to the President. The republicans have been steadily painting a target on this President and I think we have an obligation as a people to combat that.

    We certainly don’t need to throw out our constitutional rights but at the same time we need to weigh risk against those rights as the crowded theater scenario demonstrates. And this James Earl Ray wannabee may be an example where the threat outweighs the right. Not sure, but given the rhetoric coming from the right regarding this President I have to at least allow for the possibility.

  13. There was Bush assassination film: http://en.wikipedia.org/wiki/Death_of_a_President

    And while I can see a distinction between the satire and the neo-Nazi’s poem, I am also not really comfortable with the government drawing the lines.

    On the other hand if *THIS* president were assassinated, it could tear this country apart unlike anything I have seen in my life. It shames me to say as a libertarian—but maybe we just look the other way this time. Maybe its okay if the neo-Nazi’s have a rough time during the Obama administration.

  14. Larry : “Which Oliver Stone movie is about killing a black president?”

    —–
    I think that may be an error unless Stone has something in the works that I haven’t seen anything about. I am a big OS fan and generally read any article about him or his work whenever I run across one. Perhaps the Professor inadvertently typed in “black” when he was thinking about JFK.

    Thoughts regarding the article about the arrest of Mr. Spenser: It seems to me that voicing ones dis-satisfaction with a politician, even to the point of fantasizing their death, is protected. Once you start explicitly planning, with others, by soliciting assistance or necessary training or outfitting to do the deed then other laws kick in. Voicing hostility to a politician or governmental administration is the first step in righting a political problem, be it by the ballot box or revolution. I think that the founders were so conservative in protecting speech and assembly. Organizing for change can only be done with speech and assembly so the ability to exercise that ultimate right, the FIRST Amendment, to it’s fullest (short of announcing ‘I’ve got a rifle and I’m going down to city hall to kill the Mayor, who’s with me?’ which moves the debate into another area of regulation) should be protected.

    There are a lot of politicians that I believe could contribute most to the advancement of the Republic by dropping dead. I could do a nifty little haiku about the virtue of arterial plaque either as real time commentary or wistful, wishful thinking. I made some very rude jokes about the wrong person being shot during the Cheney hunting trip. I could come up with some ugly (and funny) ad hoc fantasies on the subject of untimely death scenarios for various politicians. I suspect I am not alone in these regards even among the kind hearts and morally cognizant on this blawg.

    Assassination for political purpose is an old practice and is playing out in the headlines even as as we debate this current article. The difference is that we are reading about the British and Israeli’s, government sponsored assassination. If that was a viable alternative to an invasion of Afghanistan was a public debate last year. Why should government actors discuss their fantasies or wishful thoughts about assassination while imprisoning a citizen for doing the same? Surely Mr. Spenser is far less able to incite such fantasies to fruition than are high government officials and agents (and their enablers) are.

    Speech is different that action. The car full of meth heads that went to (as I recall) the Democratic convention with guns, false ID and a plan to shoot Senator Obama were eventually arrested and went to jail; through a back door as I recall, on other charges; but that was appropriate. They should have kept talking or written a screenplay instead of putting their fantasy’s into action. I might not like their speech, I may feel it contributes to a hostile and coarse level of discourse but I’m for protecting it.

  15. Well I see your point Jericho, but its not applicable. Jon Bon Jovi’s song in no way was intended to threaten anyone or suggest killing anyone. Mr Spencer admitted to the Secret Service that he was in fact referring to the President.

    The Supreme Court ruled that context was important with the “fire in a crowded movie house” scenario. The context was what was important. Yelling “fire” for example in a big field where no one was around was covered speech. Yelling fire at a shooting event is covered because people are aware of the “context”.

    Yelling fire however in a crowded theater however was not covered by free speech rules because in that context it would cause a panic, and might cause people to be injured.

    In this context, Mr Spencer, a known neo nazi, criminal, etc, writing about assassinating the President on a website the Secret Service and the signing Judge has decided is not covered because of the obvious context. It is possible however that a court might find with Dr Turley and agree that it is still covered, I do not know. But clearly there is a fine line here and the truth doesn’t lie completely on one side or the other. This isn’t an absolute.

    The threats on President Obama have been massive from what we understand and when known hate groups make public statements about murdering him they have no other choice but to investigate and possibly act on it as they did in this instance. After all, had this Lee Harvey Oswald wannabee actually been ignored under free speech protections, and then acted out his public fantasies can you imagine the public outcry then? Do you doubt for a minute that the Secret Service would be blamed for ignoring such an obvious set of signs (i.e. drug addicted unemployed Neo Nazi and known criminal posts messages fantasizing about assassinating the President)?

    I usually agree with Prof. Turley on this free speech issues and I’m not sure I disagree with him here, but I’m also not sure the Secret Service didn’t do the only thing possible here, and act on what they felt was a clear threat to assassinate or an attempt to incite others to assassinate the President. While I’m for free speech on almost every occasion, I’m not sure I am on this one. I’m not sure I’m not. But I’m not sure I am.

    This is one of those decisions that I’m glad I’m not the one having to make it.

  16. But then, listen to this!

    “So load your guns and fire away,
    All it takes is one fair shot to blow your world away”

    Jikes! It’s the feared Jon Bon Jovi, he’s gonna kill us all, run for your lives, aaaaarghh.

  17. Now if the above article as you state is wrong and is misleading us, well then as I said so be it. I can’t do anything about that, no more than I can respond to your “disbelief” of it. I can only base my comments on the facts as they are presented and the facts presented in the article clearly state that Mr Spencer recently reposted that someone faxed that to the Secret Service who acted on it. And at this point I have no reason to doubt the article or its author.

    We know they were aware of the poem since shortly after President Obama was elected in 2008 and that supports the article above by pointing out that something “changed” between then and now that made the secret service act on it based on a fax they received.

    Had someone simply faxed them the original article that they were already aware of then they wouldn’t likely suddenly act on it. They already had the article pointed out to them and were already well aware of it.

    But had someone faxed them a NEW copy of the article, RECENTLY posted on some website by Mr Spencer, as this article claims, then that indeed would explain why they acted on it now.

    I probably was a bit harsh in calling your argument nonsensical. Its based on our history of your following me around to find things to argue with me on. I tend to be dismiss you due to it. But to be fair your argument and doubts do have some merit. Upon my going out to read your articles as well as finding some more since you raised the question, I can see where one might question the article above based on what could be interpreted as conflicting accounts. So I’ll agree with you on one point you made. It would be best if we could find the affidavit and see what he’s actually being charged with and why. That we agree on.

  18. Correction: “If we find out that is not the case and that the FBI was lying about that then no doubt all charges will be dropped against Mr Spencer.” should read “If we find out that is not the case and that the FBI was lying about that then no doubt THOSE charges will be dropped against Mr Spencer.” They’d still have a case for the “Threatening a Candidate for President” charge he reportedly is being charged with.

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