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U.S. Const. amend. I does not protect conduct that threatens another. The free speech issues concerning the offense of threatening to commit a crime are resolved by defining the elements of the crime in a way that prevents a conviction based on protected speech. By limiting the crime of threats to those cases where the defendant expresses an intention to inflict a crime on another, has the ability to carry out that crime, causes the victim to fear harm, and does so in circumstances that make the victim's fear justifiable, the offense of threatening to commit a crime only reaches cases of "true threats" that would not qualify as protected speech.
Earl Sholley was active in an organization dedicated to fathers' rights. Sholley was convicted of threatening to commit a crime, being a disorderly person, and disrupting court proceedings for his outburst in a courthouse after he learned that a father had been sent to jail in a domestic violence case. The Appeals Court affirmed the conviction of threatening to commit a crime, but reversed the conviction of being a disorderly person, on the ground that the defendant's conduct did not come within the ambit of G. L. c. 272, § 53, and the conviction of disrupting court proceedings, on the ground that there was no evidence that any particular proceeding had been disrupted.
WAS Sholley’s conviction for threatening to commit a crime proper?
The court reversed Sholley’s disrupting court proceedings conviction, even though various persons temporarily suspended their normal courthouse activities, because there was no evidence of any actual impact on any proceeding. The court affirmed Sholley’s conviction for threatening to commit a crime because his statement "Watch out, Counselor," along with his enraged demeanor and yelling tone of voice permitted the jury to conclude that the statement was intended as a threat. The threatening statement was not protected by U.S. Const. amend. I as political hyperbole. The court also affirmed Sholley’s disorderly person conviction because Sholley’s threatening a district attorney and screaming and running through the courthouse corridors was threatening and tumultuous.