What mens rea, if any, is required for threatening speech to be constitutionally criminalized? Must the speaker have intended for his communication to be threatening? In Virginia v. Black (2003), the Supreme Court for the first time provided a definition of “true threats,” a categorical exception to the First Amendment. However, the Court failed to clearly answer the above questions. As a result, lower courts have interpretedBlack’s language to reach contradictory results regarding the issue of intent. Consequently, speech that is constitutionally protected in one jurisdiction may be criminalized in another. Such controversy and confusion is not new to the jurisprudence. Since the Court’s decision in Watts v. United States (1969), which created the “true threats” exception, lower courts have disagreed over the proper intent standard for threatening speech. Instead of clarifying the doctrine, the Court’s decision in Black has only served to further muddy the jurisprudence. When Black was decided, the overwhelming majority of courts had settled on an objective intent standard; however, the Court’s language in Black has cast some doubt on the propriety of that approach. This Note will examine the issue of intent and its disputed place in the true threats jurisprudence from the debate’s inception to the present day. Moreover, the impact of Black will be elucidated and explored. Finally, this Note suggests that when the Court addresses the issue of intent again, it should adopt a standard that requires the government to prove that the speaker intended for his communication to be threatening.
Note
European Corporate Choice of Law
Between 1999 and 2003, three landmark decisions of the European Court of Justice—Centros, Überseering, and Inspire Art—struck down laws restricting the ability of corporations to exercise their right to free establishment under the EC Treaty. The most significant impact of this freedom is the ability of a corporation to choose its state of incorporation. Prior to the three landmark decisions, continental Europe had effectively prevented such choice by forcing a corporation to be incorporated in the state where its central management was located, the so-called real seat doctrine. Yet the revolution in corporate choice of law expected by many scholars after the three landmark decisions did not occur. This Note argues that this failure resulted from indirect restrictions imposed by continental countries which removed the incentives motivating corporate mobility. Three new decisions by the European Court of Justice, de Lasteyrie du Saillant, Marks & Spencer, and SEVIC Systems, have attacked these indirect restraints. The Court’s analysis in this second wave of liberalization demonstrates a willingness to overturn not only laws that directly restrict corporate freedom of establishment but also statutes that reduce corporate incentives to seek more efficient governing law. While the first wave of landmark decisions may have been more significant jurisprudentially, the second will be far more influential on the actual exercise of freedom of establishment. The effect of the second wave cases will be a European corporate landscape that looks much more like that of the United States than of Europe itself last year.
The Unrealized Promise of Section 1983 Method-of-Execution Challenges
Prior to Hill v. McDonough, federal courts largely viewed method-of-execution challenges as being cognizable only through a petition for habeas corpus. Because federal habeas doctrine involves significant restrictions, such challenges were often difficult, if not impossible, to bring. This was particularly true, for instance, where an inmate had already litigated his first habeas petition and attempted to bring a later habeas corpus execution-protocol challenge: the rules against successive petitions nearly always prevented it, regardless of any newly-revealed factual or legal predicates for the challenge.
But Hill (and a predecessor case, Nelson v. Campbell) changed this framework: inmates could now challenge their method of execution through § 1983. By freeing inmates from many of habeas corpus’s restrictions, this ought to have made a significant difference for litigants.
As is often the case, though, theory and practice can diverge. This Note will show that lower courts seeking procedurally to limit the litigation resulting from Hill often fall back on habeas doctrine, importing aspects of it into these § 1983 suits. Given the very different policies and rules that underlie each of these doctrines, this importation frustrates the promise of Hill’s § 1983 vehicle for method-of-execution challenges. And even where courts do not engage in such importation, they frustrate Hill’s promise in other ways not required by applicable § 1983 doctrine, such as by formulating unduly harsh timing rules or overlooking the applicable standard of review. Thus, to date Hill’s § 1983 vehicle has done little to loosen the method-of-execution challenge vise.