Jul 14th 2009 8:28PM the most recent and relevant case regarding the necessity of imminent lawless action is Hess v. Indiana where the supreme court overturned a conviction of Hess who was leading a protest in the streets. When the police cleared the streets Hess yelled, "we'll take these f---ing streets later!" And the police arrested him. The Supreme Court overruled his conviction citing Brandenburg saying that Hess's speech was unlikely to cause "imminent" harm (because he was advocating taking the streets "later").
Actually having a concrete plan to kill the president will land you in jail for attempt, conspiracy, etc. But 'saying' that you have a plan which will be carried out at a later time, is protected under the 1st ammendment. Even if you specifiy when and where and with what gun. It may give the police probable cause to watch you, and arrest you upon any actions taken in furtherance of such a plan. But those words alone are not sufficient to subject you to prosecution.
Jul 14th 2009 7:07PM well, he would have a case if he was arrested on that statement alone, I should say.
Jul 14th 2009 6:57PM actually, as far as I know the first amendment should cover his speech.
Certain types of speech are unprotected by the first amendment, threats of violence fit into the unprotected category of speech known as incitement of imminent lawless action. The problem there however, is that the lawless action has to be IMMINENT. Unless he stated those words at 7:29 while standing in line to board a plane his threats were not imminent.
The yelling fire in a theatre situation was first used by Holmes when he created the clear and present danger test, which was later narrowed to the imminent lawless action test in Brandenburg v. Ohio. The current state of this line of cases is that mere advocacy of illegal action does not justify state action, unless that advocacy incites imminent lawless action and is likely to produce such imminent action.
I think that the kid actually has a valid first ammendment case against his arrest for saying something in-game.