I am a passionate fan for my favorite teams – the Cincinnati Reds, Notre Dame football and The University of Chicago Women’s basketball team (especially #12). But I think I have been able to keep my emotions in check – for the most part. The same apparently cannot be said for John Giamella, a passionate Kicks fan. Giamella was arrested last week for several tweets that suggested it was time for Knicks owner James Dolan to die. In addition to tweets that said “James Dolan, it’s officially time to die” and “Death to James Dolan” Giamella apparently posted naked photos of himself holding a gun. Giamella’s father is a New York cop. So this could get a little awkward.

But the question for me, of course, is whether Giamella has a First Amendment defense. He is certainly free to criticize Dolan’s performance (and he wouldn’t be the first), but did these tweets cross the line into “unprotected speech”? The answer is a very definitive “maybe.” And that’s because the law of “threats” is, to put it mildly, a little murky.  

On the one hand it’s pretty obvious that the First Amendment doesn’t protect an armed robber who says “your money or your life.” On the other hand, it’s equally obvious that when a football player rants in the locker room about “crushing” the opponent, there’s no crime. The tough part is everything in between. There are several issues to consider. For starters, courts have tended to protect “political speech” – even when that speech sounds like a threat. In a 1969 U.S. Supreme Court case, the court ruled that a Vietnam War protester who said “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” was engaging in protected political speech. 

There is also the question of whether the speech is a “true” threat. And that has something to do with the speaker's intent and the recipient’s perception. Recent court cases have tried to apply an objective test. Here’s what the U.S. Court of Appeals for the Fifth Circuit had to say: “Speech is a true threat and therefore unprotected if an objectively reasonable person would interpret the speech as a serious expression of an intent to cause a present or future harm. The protected status of the threatening speech is not determined by whether the speaker had the subjective intent to carry out the threat; rather, to lose the protection of the First Amendment and be lawfully punished, the threat must be intentionally or knowingly communicated to either the object of the threat or a third person.”

So back to the Giamella/Dolan case. It doesn’t matter if Giamella really intended to carry out his “threat.” What matters is whether an objective third party would consider the tweets a serious expression of an intent to cause future or present harm. I don’t know how this will come out. But I wonder if the fact that he tweeted the “threats” makes a difference. If I represented Giamella, I think I’d argue that if he really planned to kill Dolan, he wouldn’t broadcast that fact.

And I wonder if Dolan’s status figures in the mix. Sports owners – especially the ones who own lousy teams – tend to be targets for comments from frustrated fans. It seems to me there is a little “it comes with the territory” here. If Giamella tweeted the same things about his boss, or some other private figure, that would be one thing. But in this case, I think I’d argue that the comments were just a little over the top, but not a serious threat.