◆ SpookStack

AO 72A (Rev. 8/82) Whoever. . . threatens to assault, kidnap, or murder, a United States official. . . [i] with intent to impede, intimidate, or interfere with such official. . . while engaged in the performance of official duties, or [ii] with intent to retaliate against such official . . . on account of the performance of official duties, shall be punished as provided in subsection (b). 18 U.S.C. § 115(a)(1). This language contains an actus reus, specifically, making a threat, as well as two defined forms of mens rea: (1) intent to prospectively interfere with the victim’s exercise of official duties; or (2) intent to retaliate against the victim for the past exercise of official duties. I will discuss these elements seriatim. Il. Section 115(a)(1)(B) proscribes only threatening communications, recognizing that not all apparently threatening utterances fall into the category of “true threats.” The words spoken by F enton without question reeked of animus, but his statements regarding Congressman Murtha were made only to Leventry. The evidence shows merely that Leventry was an insurance adjuster with no connection to Murtha. The question that animates this case, then, is whether such remarks, spoken during a conversation with an unrelated third party and not directly to the victim, constitute a threat within the meaning of the statute. I conclude that, on these facts, they do not. The statute criminalizes a form, albeit an unsavory one, of pure speech. As such, “it must be interpreted with the commands of the First Amendment clearly in mind,” Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam), “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 708 (quoting New York Times Co. v.