Where liberty ends and license begins

Reason reports that Judge David Alan Ezra of the Western District of Texas, in U.S. v. Griffin, has ruled that generalized threats to kill Jews and so-called 'Zionists' are punishable under federal law — that they are not shielded by the First Amendment. The ruling sits at the precise boundary that every republic built on free expression must eventually draw.

Let me be plain about the first principle. The freedom of speech is not an ornament of government — it is a structural necessity. A free republic cannot function if citizens cannot criticize their governors, contest received opinion, or argue for unpopular causes. That is why the First Amendment is written in absolute-sounding language: Congress shall make no law. I helped push for that language because I had watched what governments do when they hold the power to silence dissent.

And yet — and this is where structural reasoning must do its work — the freedom to speak is not the freedom to place your neighbor in reasonable fear of imminent death. The distinction matters enormously. A threat directed at a specific person, or at an identifiable group in terms sufficiently concrete to put reasonable people in fear, is not an argument being made in the marketplace of ideas. It is an instrument of coercion. It suppresses the speech and liberty of its targets far more than punishing it suppresses anything worth calling discourse. The liberty of the threatener cannot extinguish the liberty of those threatened.

The Supreme Court — which I did not live to see develop this doctrine, so I speak here by inference from the logic of my own principles — has long distinguished between protected hyperbole and 'true threats.' That distinction is sound. What I would ask of any court applying it is rigor: the test must be objective enough that government cannot weaponize it against political dissent simply by calling criticism a threat. The mechanism matters. A vague standard in the hands of an overzealous prosecutor is itself a danger to the republic.

On the facts as Reason describes them — general calls to kill members of a religious and ethnic community — I find it difficult to construct a structural argument that the First Amendment requires their protection. Religious liberty, which I argued throughout my life is a natural right antecedent to all civil compact, cuts the other way: Jewish citizens and all others have an equal claim to go about their lives free from intimidation on account of their faith or descent. The Establishment Clause keeps government out of religion; it does not keep government from protecting worshippers from violence.

The structural question I leave with the reader is this: Does Judge Ezra's standard leave the line crisp enough to prevent its future abuse? A ruling that punishes genuine threats while maintaining a clear, judicially reviewable standard strengthens the balance. A ruling that invites prosecutorial discretion to metastasize into the punishment of mere offensive speech weakens it. On the evidence of this lead, the court appears to have drawn the line in the right place — but the republic should watch how that line is applied as cases multiply.