Would a political poster implying that a politician will be killed by angry citizens constitute a legally-actionable threat under U.S. law?

Question

In the U.S., freedom of speech does not extend to serious threats to cause harm to another.

Don and Ron are two reactionary politicians. One election season, John, who hates reactionaries with a passion, creates two political posters:

• The first has the text "Reactionaries and Bigots Take Note: WHAT GOES AROUND COMES AROUND" and shows Don and Ron with their heads being forced into two guillotines by angry working-class citizens.
• The second has the same text, but shows Don's and Ron's severed heads (along with those of several other reactionary politicians) impaled on pikes.

Would either of John's posters (one showing two reactionary politicians presumably about to be killed by angry citizens, the other showing the reactionaries' heads postmortem without directly implying that angry citizens did the deed) be on-the-nose enough to constitute legally-actionable death threats against the politicians depicted?

Answer 1

Neither of the posters in question would constitute a "true threat" which can be subjected to legal sanctions consistent with the First Amendment. The nature of the communication, in the context provided in the question, is clearly metaphorical.

The U.S. Supreme Court, incidentally, will be hearing arguments in the case of Counterman v. Colorado on April 19, 2023, pertinent to this question, in which the issue presented is:

Whether, to establish that a statement is a "true threat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence.

This would, however, be a far closer case under British law, as illustrated by a recent case in which a British teenager was sentenced to 11 year years in prison for inflammatory Internet postings that it was established were a major factor that pushed the people who carried out mass shootings at a Buffalo, New York grocery store and a Colorado Spring gay nightclub to carry out their attacks. As reported by CNN:

Daniel Harris, 19, from Derbyshire in northern England, posted videos shared by Payton Gendron, who pleaded guilty to the shooting in Buffalo, as well as videos linked to Anderson Lee Aldrich, the suspect accused of killing five people in a mass shooting at an LGBTQ nightclub in Colorado Springs, Colorado, last November, the court heard, according to PA.

Sentencing Harris in court in Manchester, northern England, Judge Patrick Field was quoted by PA as saying, “What they did was truly appalling but what they did was no more than you intended to encourage others to do when publishing this material online.”

The postings made by Daniel Harris which led to his conviction would almost certainly not have been actionable under U.S. law which has much stronger First Amendment protections than the U.K.