Testing the limits of the First Amendment, federal prosecutors have charged a Louisville man with threatening to kill the president based on a poem he wrote and recently re-posted on a neo-Nazi Web site.
A federal public defender for Johnny Logan Spencer Jr. said in court Friday that while the poem might be offensive, it has not incited violence and should be protected under the Constitution as a work of art.
“That is what makes this country great,” Laura Wyrosdick told U.S. Magistrate Judge Dave Whalin during a federal court hearing in Louisville.
But a federal prosecutor said the 16-line verse titled “The Sniper,” which includes the language “DIE negro DIE,” is not the kind of speech that the U.S. Supreme Court has said deserves protection.
“This is a threat by one individual against another because he is the president and because he is black,” said Assistant U.S. Attorney Philip Chance.
Whalin said after Friday’s hearing that he will decide next week whether there is a probable cause that Spencer, 27, committed a crime. Threatening to kill the president is a felony punishable by a maximum five years in prison and a $250,000 fine.
In the meantime, Whalin said Spencer could be released on home incarceration after pretrial services determines that his family can provide an acceptable place for him to live.
Spencer’s poem describes an assassin’s mission to kill a president who is black. While it doesn’t mention President Barack Obama by name, Spencer said, after being arrested Wednesday, that he was referring to Obama, according to an affidavit filed by Secret Service Special Agent Stephan Pazienza.
The agent said Spencer apologized for writing the poem a couple of years ago and for posting it on the NewSaxon.org Web site, which Chance said is affiliated with the American National Socialist movement. But Spencer said he didn’t intend to harm the president, Pazienza said.
Pazienza said he received a call earlier this month from an FBI special agent who said that a man with the user name “Pain1488” —later identified as Spencer — had recently posted the poem on a Web site used for social networking by white supremacists.
David Hudson, a scholar at the First Amendment Center at Vanderbilt University, said the case poses a difficult question of whether Spencer’s words fall under what is known as the “true threat” exception to the First Amendment.
He said the courts have held that a statement may be deemed an illegal threat against the president if a reasonable person hearing or reading it would understand it as “a serious expression of intent to inflict bodily injury.”
Jurors are instructed to consider the circumstances in which the statement was made and the reactions of those likely to hear or read it.
William Sharp, a staff attorney for the American Civil Liberties Union of Kentucky, which isn’t involved in the case, said: “If the government's prosecution is predicated solely on the poem, we believe that there would be a strong argument that the poem, despite its obviously horrific and racist imagery, would be protected speech under the First Amendment.
“The mere fact that authors write graphically violent imagery, even if born out of racist or otherwise repugnant beliefs, does not automatically remove First Amendment protections and justify criminal prosecution.”
The poem describes an assassin’s mission to kill a president who is black, saying “the bullet that he has chambered is one of the purest pride … He breathes out as he pulled the trigger releasing all his hate.”
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.
Spencer’s attorney acknowledged that she found the poem offensive as a “Jewish female attorney,” but she said its language doesn’t constitute the “fighting words” that the Supreme Court said can be punished.
Hudson, the Vanderbilt scholar, said the law on threatening the president is “very muddled,” and the fact that Spencer made his remarks in a poem might cut in his favor.
“It is not as explicit as, ‘I am going to kill the president,’ ” Hudson said.
Spencer, who is unemployed, was released from prison in December after serving time for a drug charge and for escape, Wyrosdick said in court.
After his court appearance on Friday, family members told reporters that he is not involved in the neo-Nazi movement and that they were not aware he harbored racist views.
One of his cousins, Jamie McGill, testified that he loves and gets along with her biracial children.
In a book last year about the Secret Service, Ronald Kessler reported that threats against the president were up 400 percent since Obama took office, stretching its resources.
But Secret Service Director Mark Sullivan testified on Capital Hill in December that his agency had received about the same amount of threats against Obama as it did for presidents Bill Clinton and George
Reported by Andrew Wolfson
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