Freedom of speech, guaranteed by the First Amendment to the U.S. Constitution, enjoys a special place in the hearts of all Americans. While each of us understand that we cannot, and should not, jump up in a theatre and shout “fire,” we strongly feel that our right of public expression is sacrosanct.
But speech, like all constitutional rights and privileges, must necessarily have limits. The exercise of any right must be done in a responsible, lawful manner.
An example of the irreponsible exercise of “our rights” in America was evidenced in the case of 78-old-year old John McGraw.
During a Donald Trump presidential rally staged In Fayetteville, North Carolina in early March, this old codger sucker punched a protestor as he was escorted from the rally. McGraw apparently felt he had a constitutional right to physically assault the protestor because the protestor was engaging in some sort of civil disobedience.
McGraw was arrested for assault. He proudly embraced his arrest after Trump announced he would pay all of the attacker’s legal fees. Emboldened by this presidential level of support, McGraw took his physical assault to another level by informing the media:
“Next time, we might have to kill him. We don’t know who he is. He might be with a terrorist organization.”
Is that a terrorist threat?
Making a terrorist threat, often referred to as a criminal threat, is a crime in every state in this country.
The Texas “terroristic threat” law is found in Section 22.07 of the Texas Penal Code. Under this law, a terrorist threat is committed if a person “threatens to commit any offense involving violence to any person or property with intent to:
- Cause a reaction of any type to this threat by an official or volunteer agency organized to deal with emergencies;
- Place any person in fear of imminent serious bodily injury;
- Prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place;
- Cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public services;
- Place the public or a substantial group of the public in fear of serious bodily injury; or
- Influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.
As is the case under most of its criminal laws, Texas punishes violators of Section 22.07 in a varying degrees.
For example, if the threat occurs under section 1, it is a Class B misdemeanor; and if the threat occurs under section 2, it is also a Class B misdemeanor, unless the person threatened is a family member or subject to the household of the person making the threat (or otherwise constitutes family violence), or the person threatened is a public servant, then the offense becomes a Class A misdemeanor.
If the threat occurs under section 3,it is a Class A misdemeanor, unless the threat results in the pecuniary loss of $1,000 or more to the owner of the building, room, place, or conveyance, then the offense is a state jail felony.
If the threat occurs under sections 4, 5, or 6, it is a straight felony in the third degree.
Thus the penalty for making a terroristic threat in Texas ranges from 180 days in a county jail to a sentence of not more than ten years in prison, and/or a fine ranging from $2,000 to not more than $10,000.
Texas’s “terroristic threat” law, originally enacted in 1974, really has nothing to do with the term “terrorism” as we know of it today. Its purpose is to protect individuals and property from the reckless and irresponsible exercise of the First Amendment’s guarantee of free expression.
So could John McGraw be charged in the state of Texas for the implied threat he made against the North Carolina Trump-protestor?
Texas’s terroristic threat law is a very intent specific law. Prosecutors would have to prove beyond a reasonable doubt that McGraw had a specific intent to commit an act of violence resulting in serious bodily injury to the protestor. Simply saying “we might have to kill him (the protestor)” next time, though irresponsible, is not a fact-specific threat under Section 22.07.
This assessment notwithstanding, it is important that you understand what constitutes a terrorist threat and how you can fight back if you have been charged or discover that you are under investigation.
If you are accused of a crime that fits the definition of a terrorist threat under Texas (or federal law), you will need to act quickly to protect your rights and your future. Depending on the nature and overall seriousness of the threat, you may find that other government agencies become involved, which can complicate the situation.
When considering a defense, there are a number of potential options available, depending on the specific circumstances of your case. You can argue that…
- …there is a lack of evidence
- …your actions are protected under the First Amendment
- …it is a case of mistaken identity
- …it is a case of victim overreaction
- …there was no intent to follow through with the threat.
To determine which defense is most likely to succeed, you will need to work with terrorist threat attorney who has a strong track record handling these types of cases. He or she will be able to give you a better idea of where you stand and what you should do to have the charges reduced, dropped, or dismissed.