November 19, 2008
Texas Football, Barack Obama and Threats Against the President
Posted by Christine Hurt

I'm surprised that this story did not get more attention from either the popular media or the blogosphere.  Back-up center for the Texas Longhorns (that would be the team that Texas Tech beat 2 weeks ago, knocking them out of the #1 place) Buck Burnette was released from the team after posting a particularly vile status comment on his Facebook page following Barack Obama's election victory.  Texas coach Mack Brown explained that he had warned member of the team not to have personal webpages, but if they did, to be careful what they posted on those pages.  The athlete accepted his punishment and issued an apology, and the story seemed to just go away.  The story seems to just be a sad consequence for ignorant behavior -- a young person, who is hopefully still in the process of forming his own worldview, posted something ignorant on his Facebook page without even considering that posting something on a page accessible to probably hundreds of people was any different than whispering stupid, racist things to your ignorant, like-minded buddies.  His education will no longer be subsidized or paid for through his athletic scholarship; he loses the opportunity to be part of a national championship football team.  Comments to various stories in the Chronicle of Higher Education and local newspapers worried over Mr. Burnette's free speech rights, but of course Mr. Burnette still has the right to say whatever he wishes to say and Mack Brown has the right to run his team.  Unfortunate, but sort of a small story.

But is it?  Dusting off my copy of the U.S.C., I find that Mr. Burnette may have in fact committed a federal crime.  Making threats relating to a presidential candidate, the president-elect, and of course, the president, is in fact a crime (18 U.S.C. §, 879).  "Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both."

So, why was Mr. Burnette arrested?  Is it not a threat to say "[A]ll the hunters gather up, we have a (slur) in the White House"?  (The slur is not the n-word, but another slur more in keeping with the hunting motif.)  I have not done any case law research into what constitutes "any threat to take the life of, to kidnap, or to inflict bodily harm upon the President," but it seems that the speaker would have to be able to foresee that a reasonable person would consider the statement as representing a true threat to the president.  I wouldn't dismiss Mr. Burnette's statement out of hand, although it is clear that his statement was more idiotic rambling than a reflection of an actual plan.  In any event, if I were Mack Brown I would treat the dismissal of Mr. Burnette as not merely a case of someone violating a webpage policy, but also one of a player arguably threatening the life of the President-Elect.

Thoughts?  Have we become immune to violations of 18 U.S.C. § 871 in today's environment of vile political rhetoric and anything-goes commentary?

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