February 20, 2020
Last year, a clown sighting in South Carolina reignited a nationwide panic. The white-faced scare dates back to 1978 when John Wayne Gacy, or Pogo the Clown, took his first victim. Luring with the promise of construction work, Gacy captured and sexually assaulted over 30 young men, and eventually strangled most of them with rope. When he killed, he sometimes dressed as his alter ego “Pogo the Clown.” After Gacy’s conviction in 1980, Pogo the Clown became the face of a serious evil, and perverted our understanding of clowns as friendly and trustworthy. Coulrophobia, the fear of clowns, had reached an all-time high. Six years later, Stephen King continued to exploit the story of the vicious serial killer by creating Pennywise the Dancing Clown in his novel IT. These horrifying stories perpetuated feelings of insult and fear against an image we had once loved and cherished in happy moments, such as birthday parties and carnivals. Every Haunted House in the nation began adding scary clowns to their performance to prey on the real-life terror that haunted America. Now, 27 years after the first release of Stephen King’s film adaption of IT, more and more clown sightings have occurred throughout the nation. But these recent clown sightings beg the question: do creepy clown costumes constitute as criminal conduct or violate the First Amendment as a clear and present danger or a true threat?
Clearly, the State of Tennessee has statutes and regulations in place to proscribe criminal activity. Under Tennessee Law, the offense of intimidating others is defined as suppressing the civil right of an individual or group because of “race, color, ancestry, religion, or national origin,” by means of “fear, intimidation, harassment, and bodily injury caused by the activities of an individual or group.” T.C.A. § 39-17-309. Meaning a person in a clown costume, or any personal disguise, would need to specifically target an individual or group of individuals based on a distinguished category. Additionally, the disguised person would use fear, intimidation, bodily injury, or harassment to prevent that targeted individual from enjoying constitutionally guaranteed civil rights or privileges. The disguise could be a ski mask, Disney princess gown, or a creepy clown costume; the type of the costume is irrelevant. The crime, whether it be intimidating a protected class or robbing a bank, will result in a conviction. Wearing creepy clown costume does not constitute as criminal conduct; otherwise, adults wearing creepy Halloween costumes to scare children or Haunted House workers scaring admitted viewers would constitute as criminal activity. Therefore, the State of Tennessee does not proscribe the wearing of costumes, unless that costume is used in furtherance or during the commission of a unlawful activity.
The First Amendment guarantees a right to freedom of speech expression and affiliation; however, the drafters of the First Amendment did not intend to give full immunity for every use of speech or conduct. A type of speech not protected by the First Amendment is speech that presents a clear and imminent danger to others. To address speech that presents a clear and imminent danger, State may proscribe any advocacy of violence or breach of peace that not only intends to incite or produce imminent lawless action, but also has a high probability to incite or produce that intended action. Brandenburg v. Ohio, 395 U.S. 444, 445 (1969). In Brandenburg v. Ohio, a Ku Klux Klan (“KKK”) leader, orchestrating a rally of KKK members, requested that news reporters film the members burning a cross in a field. Id. The leader claimed that the KKK would march to the White House on the fourth of July, four hundred strong.” Id. at 446. However, there was no prove that the KKK actually intended to march to the White House; no blueprints or four hundred signatures that would indicate a legitimate plan was underway. The KKK leader was convicted for violating an Ohio statute that prohibits a person(s) from advocating or instructing other of the duty of crime, sabotage, violence, on unlawful methods of terrorism” as a means for social or political reform.
In response the Supreme Court reversed the conviction, holding that a State may proscribe advocacy of violence, only when such advocacy is intended to incite or produce imminent lawless action, and moreover, having a high probability to incite or produce that intended action. Although the KKK leader advocated plans to take revenge against the White House for suppressing the white Caucasian race, his speech never crossed the threshold into legitimate plans to incite an imminent lawless action. Usually defined as impending or ready to take place, “imminent” began to include “expected” or “hanging threateningly over one’s head.” Enoch v. State, 95 So.3d 344, 347 (Florida App. Ct. 2012).
The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002). In Enoch v. State, a statute, seeking to protect the public from speech and conduct used encourage gang membership, prohibited using electronic communication to intimidate or harass others for the purpose of benefiting, promoting, or furthering even the gang’s legitimate interests. Enoch v. State, 95 So.3d 344, 347 (Florida App. Ct. 2012). In that case, the court found that the statute failed to create a nexus between the advocating speech and the imminent overt action, and therefore, was held as unconstitutional. Id. at 359. The statute broadly criminalizes the use of electronic communication when merely advertising one’s presence in the community for the purpose of benefiting, promoting, or furthering even the gang’s legitimate interests. Id. at 360. Although the statute has a compelling interest to prevent criminal activity, without showing of inevitable lawless action, it cannot be protected by the First Amendment.
Within the context of clowns, a person dressed in a creepy clown costume has the right to expression, so long as that expression does not present a clear and imminent danger to society. As with the KKK and gang affiliations, even the most offensive expression is protected so long as advocacy does not cross the threshold of becoming an imminent lawless action. For example, the Juggalo community consists of individuals who center around a dark carnival theme – painting their faces like sinister clowns or corpses and copious amounts of piercings, tattoos, or both. Due to some local criminal activity linked to individuals who identified as Juggalos, in 2011 Juggalos were listed by the FBI as a “hybrid gang,” who engages in “gang-like behavior and criminal activity.” On September 15, 2017, the Juggalo march on Washington in retaliation of the FBI listing exemplified the concept of advocating speech via peaceful demonstration that remained within the protection of the First Amendment. The Juggalos’ advocacy never crossed the threshold of becoming an imminent lawless action. Therefore, despite how offensive or angry they appeared to outsiders, their protest was completely within the protection of the First Amendment.
On the other hand, an intentional expression of violence or intimidation by someone in a clown costume would not be protected by the First Amendment. Virginia v. Black, 538 U.S. 343, 358 (2003). A “true threat” is statutorily defined as a statement by the speaker meant to communicate a serious expression of an intent to commit violence to a particular individual or group of individuals. Id. at 359. In Virginia v. Black, a man violated the statute because his conduct of burning a cross on the property of another inferred an intent to intimidate. The man conceded that his actions constituted a “true threat,” in that they were meant to intimidate, placing the recipients of the threat in fear of bodily harm or death. Id. at 360.
The Supreme Court held that intent behind the action governs the determination of the purpose of the speech. Id. at 361. In order to find a true threat, the defendant needed to intentionally make a statement, written or oral, “in a context or under such circumstances wherein a reasonable person would foresee that the statement should be interpreted by the intended audience as a serious expression of an intention to inflict bodily harm or take a life.” Furthermore, the statement could not be the result of a mistake, duress, or coercion. United States v. Kosma, 951 F.2d 549, 557 (3d Cir. 1991). The Court distinguished between two reasons for cross burning: (1) the historic symbolic speech used by the KKK to convey a message of intimidation to the viewer, placing him or her in fear of bodily harm or death or (2) symbolic speech that connects with other ideas expressing hostility on the basis of political association, union membership, or homosexuality. Id. The first is unconstitutional, the second is highly valued speech, protected by the First Amendment. The sheriff observed the man burning the cross from the highway. The KKK members could reasonably know their reputation precedes them, and recognize that burning cross would be interpreted by others as a threat. However, the objective test of determining the presence of a true-threat does not cover reasonableness, and not enough to protect politically legitimate speech.
A person’s intent is still the deciding factor when proving conduct as a “true threat.” Elonis v. U.S., 135 S.Ct. 2001, 2009 (2015). In Elonis v. U.S., a man posted several threatening messages on Facebook: desires to kill his ex-wife, lyrics about planting explosives inside the Sherriff’s department, and threats of shooting up elementary schools near his home. Id. at 2005, 2006. It is noteworthy to mention that Elonis was the first case to examine true-threat jurisprudence since Virginia. The man was convicted under 18 U.S.C. § 875(c) which provides, “whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” 18 U.S.C.A § 875(c) (West, 2014). The Court had to consider what the actor thought or intended his messages to convey, which differs from the reasonableness standard typically used in civil actions. Id. at 2011.
The Supreme Court, continuing its holding in Virginia, held that the alleged wrong-doer must have known that he was transmitting a threatening message and the message was a threat to injure the person of another. Id. at 2014. The speaker must be “blameworthy in mind,” having mens rea, malice aforethought, guilty knowledge, scienter, etc. Id. The defendant’s conviction in that case did not stand because the lower courts followed the reasonable person standard in a criminal case. The Court reasoned that the reasonable person standard usually found in civil actions was inconsistent with requirement for criminal conduct – simple awareness of some wrongdoing. Id. If the court followed the standard of a reasonable person without reference to the state of mind of the wrongdoer, a higher probability of reducing the culpability of the criminal results. Id. The speaker must only make the communication from which the intent could be distinguished. This Court and the court in Virginia concluded that subjective intent to threaten was not to be considered by the court, and the reasonableness of the speaker or the listener was not to be considered.
To answer the question from the beginning, wearing creepy clown costume does not constitute as criminal conduct, unless that costume is used in furtherance or during the commission of a unlawful activity. Next, a state may proscribe advocacy of violence, only when such advocacy is intended to incite or produce imminent lawless action, and moreover, having a high probability to incite or produce that intended action. Also along that reasoning, the mere tendency of speech to encourage unlawful acts is not enough to ban it. Without showing of inevitable lawless action, it cannot be protected by the First Amendment. This meaning a person or persons dressed as a clown would need to incite violence or encourage imminent unlawful action; thus, excluding possible dangers or irrational fears or offended feelings. Lastly, to find a true threat, the defendant needs to intentionally make a statement, written or oral, “in a context or under such circumstances wherein a reasonable person would foresee that the statement should be interpreted by the intended audience as a serious expression of an intention to inflict bodily harm or take a life.” Moreover, the speaker must be “blameworthy in mind,” having mens rea, malice aforethought, guilty knowledge, scienter, etc. The person in the clown costume would need a specific message or conduct speech to express a serious intent to hurt someone, which again does not include feeling offended or insulted by an individual wearing a creepy clown costume.