(dissenting).
Appellant attended a rally of the W. E. B. DuBois Club at the Sylvan Theater on the Washington Monument grounds. Those attending the rally divided into several discussion groups, one of which appellant joined. The rally and the discussion groups were open to the public.
In the course of a discussion of police-community relations in appellant’s group, a participant said something to the effect that “we should have a better education before we get involved in things of this nature.” According to Freeburger, an investigator for the Army Counter Intelligence Corps who was observing the discussion, appellant then replied:
“They always holler at us to get an education and yet I have already received my draft classification as 1-A and I have got to report this Monday coming for my physical. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.”
Shoemaker, a detective sergeant of the United States Park Police, essentially confirmed this version of what appellant said. According to Wieghart, a reporter for the Milwaukee Sentinel, appellant said in substance:
“ * * * that he did not think that Negroes ought to serve in Vietnam to shoot Vietnamese. He didn’t think black men should look down the barrel of a rifle to kill Vietnamese. He said that rather than looking down the barrel of a rifle to kill Vietnamese people he would rather look down a rifle aimed at the President.”
After appellant made his remark, persons in the audience laughed and applauded.
On the basis of these facts, appellant was convicted of “knowingly and willfully” making a “threat to take the life of or inflict bodily injury upon the President of the United States,” under 18 U.S.C. § 871 (1964). I believe that the conviction cannot stand, when Section 871 is construed in accordance with its legislative history and the dictates of the First Amendment.
I
The statute today codified as 18 U.S.C. § 871 was enacted in what for purposes of this case can be regarded as its present form in 1917.1 The brief report of the House Judiciary Committee, which approved the bill, stated its purpose as follows:
“This bill is designed to restrain and punish those who would threaten to take the life of, or inflict bodily harm upon, the President of this Republic. It is the first and highest duty of a Government to protect its governmental agencies, in the performance of their public services, from threats of violence which would tend to coerce them or restrain them in the performance of their duties.” 2
The House floor debate on the bill somewhat clarified and expanded upon this cryptic expression of legislative intent. In responding to the complaint that the bill was useless as a protection of the President’s person, its chief spokesman, Congressman Webb, indicated that it was partly designed to prevent the incitement of others to assassination.3 More significantly, Congressman Webb repudiated a suggestion that the *687words “and willfully” be deleted from the bill. In so doing, he indicated his view, as representative of the committee which had recommended the bill, of the intent required as an element of the offense which it created:
“ * * * I think he ought to be shown to have done it willfully. I think it must be a willful intent to do serious injury to the President. If you make it a mere technical offense, you do not give him much of a chance when he comes to answer before a court and jury. I do not think we ought to be too anxious to convict a man who does a thing thoughtlessly. I think it ought to be a willful expression of an intent to carry out a threat against the Executive, and I hope that the gentleman will not offer his amendment.”
53 Cong.Rec. 9378 (1916). (Emphasis added.) The requirement of willfulness was retained and the bill was enacted into law without further substantive debate in either house.4
This indication that Congress considered specific intent to execute the threat an element of the offense was largely ignored by the courts which first construed the act during 1917-18. Thus in United States v. Stickrath, S.D.Ohio, 242 F. 151 (1917), no intent to execute the threat was required to be alleged or shown. See also United States v. Stobo, D.Del., 251 F. 689, 693 (1918).
Ragansky v. United States, 7 Cir., 253 F. 643 (1918), gives an often cited definition of the intent element of the offense. The court upheld the conviction of a defendant alleged to have said, among other things, “I can make bombs and I will make bombs and blow up the President.” The trial court had charged the jury .that “ ‘the claim that the language was used as a joke, in fun’ is not a defense.” Id. at 644. In supporting this charge over defendant's objection that it ignored the word “willfully” in the statute, the appellate court said:
“And a threat is willfully made, if in addition to comprehending the meaning of his words, the maker voluntarily and intentionally utters them as the declaration of an apparent determination to carry them into execution.”
Id. at 645. (Emphasis added.) And, remarkably, the court went on:
“While under some circumstances, the word ‘willfully’ in penal statutes means not merely voluntarily, but with a bad purpose [citations omitted], nothing in the text, context, or history of this legislation indicates the materiality of the hidden intent or purpose of one who * * * voluntarily uses language known by him to be in form such a threat * *
Ibid. (Emphasis added.)
In only one early case did the court cleave to the requirement of a specific intent to execute the threat. In United States v. Metzdorf, D.Mont., 252 F. 933, 938 (1918), a District Court dismissed an indictment under the act on the ground, among others, that it had alleged the supposedly threatening words alone, without including the innuendo that they were accompanied by a “present determination or intent to injure presently or in the future.”
Among the few reported decisions between 1918 and 1965 which construe this *688statute, none explicitly deal with the actual intent which must be shown to support a conviction for willfully threatening the President.5 In two cases, courts dismissed indictments because the words defendants were alleged to have used could not have constituted threats; they did not even express apparent intent. United States v. Marino, N.D.Ill., 148 F.Supp. 75 (1957); United States v. Daulong, W.D.La., 60 F.Supp. 235 (1945).6 Neither case reached the question of what, beyond the objective purport of the words, would have to be shown at trial to support a conviction under Section 871.
Since 1965, three decisions construing Section 871 are reported, all in the Tenth Circuit, which indicate that that Circuit has rejected the requirement of intent to execute the threats as an element of the offense. In Michaud v. United States, 10 Cir., 350 F.2d 131 (1965), the defendant telephoned a clear and explicit threat against the President’s life to the White House. At trial, the court instructed the jury that, at least in the ease of threats not inciting others to injure the President, “there must be proof beyond a reasonable doubt that the maker of such threats intended to carry them out himself.” On appeal, the Tenth Circuit identified this charge with Metzdorf, which it characterized as a minority view, and remanded for a new trial under the Ragansky standard, according to which specific intent is not at issue.
The Ragansky rule was extended by the same Circuit in Pierce v. United States, 10 Cir., 365 F.2d 292 (1966), apparently to include obvious jokes, and in Rothering v. United States, 10 Cir., 384 F.2d 385 (1967), to include hyperbole. In Pierce, the defendant, an inmate in the city jail of Holton, Kansas, passed to a guard with orders that it be sent to the White House a piece of paper on which he had written in pencil, “I * * * swear to kill the President of the United States of America the first chance I get.” To this oath he had appended the ominous postscript, “and by the way send me $100.00 for cigarette money.” Tried under Section 871, he defended on the ground that his scrawled “threat” arose out of a joke with a drunken cellmate. The trial court charged, on the basis of Ragansky, that the claim that the “threat” was a joke is no defense. The Tenth Circuit affirmed, under the rubric, used by the District Court in its charge in this ease, that “[i]t is the making of the threat, not the intent to carry it out, that violates the statute.” 365 F.2d at 294.
Rothering affirmed the Section 871 conviction of a defendant who, after being arrested for breaking into a food market, told a policeman “that he wanted to go to jail; that he would do the same thing over again; that he would rob other people; and that ‘if that didn’t do any good “I will kill the President if it is necessary.” ’ ” Against the defense that this statement was exaggeration or hyperbole, the court held that, just as *689the claim that a supposed threat was made as a joke was held to be no defense in Pierce, “[t]he claim of exaggeration is entitled to the same treatment.”
The trial judge here relied on Ragansky, Pierce and Rothering in charging the jury as follows:
“You are told that if one makes a threat against the President, he cannot shield himself by a claim that the words were uttered lightly or without intent to do bodily harm. It is the making of the threat, not the intent to carry it out, that violates the law. Therefore, idle talk or jesting is not a defense. * * * ”
Appellant had established at trial that the audience had laughed when he made his statement. He urged to the jury that, given the circumstances, the offending words were at most rhetorical exaggeration or hyperbole, which the jury could not believe beyond a reasonable doubt were accompanied by an intent to harm the President.
I have indulged in a perhaps overlong recitation of the facts of cases in which Section 871 convictions were sustained under the Ragansky construction simply in order to demonstrate that Congressman Webb knew what he was doing when he insisted that “willfully threaten” meant “threaten with intent to execute” in his bill. He did not think “we ought to be too anxious to convict a man who does a thing thoughtlessly.” Where the standard he convinced the House to maintain has been ignored, men have been convicted of doing something thoughtless — of using offensive language, with some implication against the President’s life, which was meant as jest, as rhetoric, or as hyperbole.
II
I do not rest my belief that this conviction cannot stand upon the legislative history of Section 871 alone. The First Amendment restricts the construction which may constitutionally be placed on the statute, at least in eases of the kind which is before us today.
In my view, Section 871 is on its face a valid statute, designed to ward off two evils which Congress has the constitutional power to prevent. The first evil is an attempt on the life of the President. The second is restriction of the President's movements, and hence interference with his conduct of his duties, caused by reasonable fear for his safety arising out of serious threats on his life.7 That Congress legitimately aimed at these evils in enacting what is now Section 871 is indicated by the legislative history.8
However, the statute which Congress passed in the relatively calm peacetime spring of 1917 was destined to be first construed in a nation at war when concern for constitutionally protected individual rights is ordinarily at low ebb.9 Thus in United States v. Stickrath, supra, the first case construing the act, the court interpreted it on the understanding that the use of threatening language against the President “stimulates opposition to national policies, however wise,” “is an affront to all loyal *690and right-thinking persons,” and “is akin to treason,” 10 242 F. at 153.
The trial court in United States v. Stobo, supra,, held that “[t]he vital inquiry under the act is whether the threat is of such a nature as to create or tend to create sedition or disloyalty.” 251 F. at 692. And in United States v. Jasick, E.D.Mich., 252 F. 931, 933 (1918), we find that threats against the President indicate “a spirit of disloyalty” and arouse “resentment and concern on the part of patriotic citizens.”
All of these stated reasons for interpreting Section 871 broadly cannot stand First Amendment scrutiny. Speech may not be prohibited in this country because it stimulates opposition to national policies, indicates or produces a spirit of disloyalty or affronts right thinking people. This was made finally clear by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), which laid to rest the threadbare contention that the First Amendment preserved the English common law of seditious libel.
Nor does the First Amendment give Congress a free hand in pursuing its valid objectives of protecting the President’s safety and his freedom of movement. Particular “threats” within the ambit of Section 871 may be protected speech, and courts may be required to decide whether such threats may be prohibited under the clear and present danger test. Of course, all spoken threats do not constitute protected speech. Utterances which “are no essential part of any exposition of ideas” or which are “not in any proper sense communication of information or opinion” are not within the purview of the First Amendment. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); Cantwell v. State of Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Thus threats are properly punished every day under statutes prohibiting extortion, blackmail and assault without consideration of First Amendment issues.
On the other hand, where an utterance does convey an idea, particularly an idea about how public affairs should be conducted, the label “threat” does not preclude First Amendment protection any more than do the labels “obscenity,” Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), or “libel,” New York Times Co. v. Sullivan, supra.
Nor is provocative, tasteless, or even shocking speech outside the constitutional protection. The First Amendment favors “uninhibited, robust, and wide-open” debate on public issues, debate which may include “unpleasantly sharp” attacks on public officials. New York Times Co. v. Sullivan, supra, 376 U.S. at 270, 84 S.Ct. 710. Free speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949).
For these reasons, speech which communicates ideas, particularly speech which criticizes public policies or public officials, “is * * * protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Ibid.11
*691Prosecutions under Section 871 for alleged threats which are part and parcel of the communication of ideas, particularly political ideas, must thus conform to the clear and present danger test. At the very least, this consideration supports the construction of the statute urged in Part I of this opinion. Where statutes impinge upon protected speech, statutory provisions governing intent will be read to require specific intent. Abrams v. United States, 250 U.S. 616, 627, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (dissenting opinion of Mr. Justice Holmes); cf. Dennis v. United States, 341 U.S. 494, 499-500, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). Where the allegation is that the defendant by his threat, incited others to kill the President, it is clear that specific intent to bring about this result must be shown. Yates v. United States, 354 U.S. 298, 318, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). Otherwise protection of free speech would be illusory, for in one sense “[e]very idea is an incitement.” Gitlow v. People of State of New York, 268 U.S. 652, 673, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (dissenting opinion of Mr. Justice Holmes).12
Where the claim is that the alleged threat brings about the other evil which concerned Congress in enacting Section 871, “threats * * * which would tend to coerce * * * or restrain [the President] in the performance of his duties,” a more difficult problem arises in reconciling this statutory purpose with the First Amendment. Congress may no doubt legislate to meet this evil. The restrictions placed upon the movements of the President, as well as other public men, by the danger of assassination have recently been much noted and deplored. There can be little doubt that the proper functioning of the Executive branch is hindered by these restrictions. On the other hand, a First Amendment standard which would allow abridgement of speech because it “tends” to create a substantive evil has been long rejected in favor of the clear and present danger test. Abrams v. United States, supra, 250 U.S. at 627-628, 40 S.Ct. 17 (dissenting opinion of Mr. Justice Holmes); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) 13
Many statements wholly protected against restriction by the First Amendment may “tend” to contribute to the climate of hate which makes the free movement of the President dangerous. The affirmations of the affluent as well as the militant exhortations of the dispossessed may have this tendency. Many statements on political affairs may, by implication or through hyperbole, compass the violent end of the Chief Executive. The threat of punishment for all such statements would exert a chilling effect on political speech too drastic to be consistent with the guarantee of free expression.
I would reconcile these competing considerations as follows. Where an alleged threat which involves the communication of ideas is thought to “coerce or restrain” the President in the performance of his duties, a conviction under Section 871 can be sustained if (1) the defendant made the alleged threat with specific intent to execute it, and (2) in the context and circumstances the statement unambiguously constituted a threat upon the life or safety of the President. The *692first requirement follows from both the legislative History and the consistent strict requirement of specific intent in criminal prosecutions impinging upon protected speech, Yates v. United States, supra, 354 U.S. at 318, 77 S.Ct. 1064. The second is an application of the clear and present danger test to the purposes of Section 871.
Consonant with Dennis v. United States, supra, 341 U.S. at 511-515, 71 S.Ct. 857, I would leave the question of subjective intent to the jury, but would make the application of the objective standard a question for the court. In Dennis, the Court.ruled that “[t]he doctrine that there must be a clear and present danger of a substantive evil that Congress has a right to prevent is a judicial rule to be applied as a matter of law by the courts.” Id. at 513, 71 S.Ct. at 869. In free speech cases, appellate courts have long engaged in detailed examination of the facts to determine whether the First Amendment permitted restriction of expression in the particular situation.14
Ill
When the standards developed in Part I of this opinion are applied to the facts of this case, it is clear that at the very least appellant should have a new trial. The District Court followed the Ragansky, Pierce and Rothering cases in charging the jury that intent to execute the supposed threat was not an element of the offense. This was contrary to the meaning of Section 871 as Congress enacted it. Further, the First Amendment standards developed in Part II of this obinion, in my judgment, require reversal fend entry of a judgment of acquittal.
In applying these standards, the first question is whether appellant’s supposed threat was speech of a kind which comes within the protection of the First Amendment at all, or whether it was, like obscenity, malicious libel and the threats which typically constitute the crimes of extortion and assault, excluded from such protection. The inquiry here is whether the words used were “in any proper sense communication of information or opinion.” Cantwell v. State of Connecticut, supra, 310 U.S. at 310, 60 S.Ct. 900, 84 L.Ed. 1213.
The version of appellant’s statement most damaging to him, that reported by Agent Freeburger, was in my mind unquestionably the expression of a political idea. The idea was that it was wrong for Negroes to kill their “black brothers,” the Vietnamese, because their real grievance was against the white establishment at home, personified by the President. The idea is the same as that articulated in more developed and refined form in the statement held protected by the First Amendment in Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966).
The fact that the statement expressed political ideas merely brings the First Amendment into play; it does not decide the case. The statement “I have a gun and I intend to kill the President, because that’s the best way to end the war in Vietnam” similarly expresses an idea, but it might well be the basis of a valid conviction under Section 871. The language used and the surrounding circumstances must be examined to determine if appellant’s words constituted an unambiguous threat against the President’s life.
Several factors lead me to conclude that they did not. First the “threat” was uttered in conjunction with an attack on the war and the killing of “black brothers.” In this context, the words Agent Freeburger reported are more likely than not to have had as their natural purport the meaning ascribed to them by the witness Wieghart — the rhetorical idea that appellant would rather shoot the President than the Vietnamese.
*693Second, appellant’s “threat” was conditioned on an event which he stated he had no intention of allowing to take place —his induction into the armed forces. The premising of a “threat” upon a condition which the speaker has the power and avowed intention to frustrate renders it something less than an unambiguously serious threat.
Finally, the audience’s response— laughter mixed with applause — is relevant if not dispositive. Such laughter may, as the majority opinion argues, have sinister implications. However, it is much more reasonable to interpret it as indicating that the words which evoked it were taken in context by their hearers to be hyperbolic emphasis of a political view which they supported.15
In short, appellant’s words,' taken in their context, are most readily susceptible to the interpretation that they were a cruc|e, even offensive, rhetorical device. They cannot be read unambiguously as a serious threat against the President. Thus in my view punishment of appellant for speaking these words would deprive him of the right to free speech guaranteed to him by the First Amendment.
I respectfully dissent.
. The Act was amended in 1955 to include threats against the Vice President and the President-elect, 69 Stat. 80, and in 1962 to include threats against the Vice President-elect and the person next in line to succeed the President when there is no Vice President, 76 Stat. 956.
. H.R.Rep.No. 652, 64th Cong., 1st Sess. (1916).
. 53 Cong.Rec. 9377 (1916).
. A statute punishing a “threat” made “knowingly and willfully” is hardly so unambiguous as to preclude looking to the legislative history for clarification of the mental element required. I do not claim that the House debate unambiguously supports the construction urged here. Congressman Volstead’s remarks, for instance, can be read to have the import which the majority gives them. They can as well be read to express concern with only one among many dangers which deletion of the word “willfully” would bring on. What is clear is that Congressman Webb, the sponsor of the bill, insisted upon a specific intent to execute the threat. Because of the obvious dangers posed by the statute, and amply illustrated by the history of its use, I consider the narrower view of the mental element the proper one.
. The cases I have located are Pierre v. United States, 8 Cir., 275 F. 352 (1921) (indictment dismissed because no allegation that anyone heard threat) ; United States v. Stepp, D.Colo., 144 F.Supp. 826 (1956) (indictment sustained); United States v. Reid, W.D.La., 49 F.Supp. 313, affirmed, 5 Cir., 136 F.2d 476, cert. denied, 320 U.S. 775, 64 S.Ct. 87, 88 L.Ed. 465 (1943) (motion for new trial denied); United States v. Apel, N.D. Ill., 44 F.Supp. 592 (1942) (indictment sustained); as well as the Daulong and Marino cases cited in text.
. In Daulong, the defendant was alleged to have said that he “had a notion to”
kill and “felt like” killing the President. These words were held to be mere expressions of hope or desire that someone might kill the President, rather than “an expression of determination or intent to do the act itself.” There was dictum to the effect that the statute required apparent but not actual intent to carry out the threat.
In Marino, the defendant was alleged to have posted a statement reading “There can be slain no sacrifice to God more acceptable than an unjust President.” Here too the court found in the words no expression of apparent intent, hence no threat.
. A threat may endanger the President’s life either by indicating that the person making the threat plans to attempt assassination, or by inciting others to the crime. If the former were the legislative concern, the statute would come dangerously close to punishment for thoughts alone. Where the latter is feared, the statute should be construed consistently with other laws making incitement to crime an offense.
The purpose of protecting the President’s freedom of movement appears to subsume the purpose of protecting his safety. Any threat serious enough to warrant punishment for endangering life would presumably also serve to restrict official mobility.
. See Notes 2 and 3, supra.
. For an account of the widespread judicial abdication of responsibility for civil liberties during World War I, see generally Z. Chafee, Free Speech in the United States 36-107 (2d ed. 1941), and for a criticism of wartime prosecutions under this statute, see id. at 184.
. Tlie suggestion that threatening the President is “akin to treason” is historically accurate. According to English law, it had been treason to “compass or imagine” the death of the King at least since the statute of 25 Edw. 3 in 1352, and still was at the time the Constitution was framed. See generally 2 J. Stephen, History of the Criminal Law of England 241-297 (1883). For an account of two perhaps apocryphal extreme applications of this statute, see Note, 32 Harv.L.Rev. 724 (1919). Chafee suggests that the careful definition of treason in the Constitution, Article III, Section 3, which excludes “imagining” or “compassing,” invalidates by implication Section 871. Z, Chafee, supra Note 9, at 172.
. I have no doubt that clear and present danger is the proper test to apply to direct restrictions of protected speech. *691Though criticized by both balancers and absolutists, and occasionally weakened by the courts under the stress of extraordinary times and circumstances, Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), the historic standard has survived. Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); Edwards v. South Carolina, 372 U.S. 229, 237, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); cf. Kingsley International Pictures Corp. v. Regents, 360 U.S. 684, 689, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959). •,
. In any event, there would appear to be no support for any claim of an inciting threat in this case.
. And see Dennis v. United States, supra Note 11, 341 U.S. at 507, 71 S.Ct. 857, for explicit recognition that the early Holmes and Brandéis dissents in First Amendment cases have become law.
. On the allocation of issues between judge and jury in First Amendment cases, see E. Hudon, Freedom of Speech and Press in America 116-121 (1963); Richardson, Freedom of Expression and the Function of Courts, 65 Harv.L.Rev. 1, 24-31 (1951).
. These three factors, of course, also go to the statutory question of whether defendant made a threat- against the President in the sense of an expression of apparent intent to harm him. See United States v. Marino, N.D.Ill., 148 F.Supp. 75 (1957); United States v. Daulong, W.D.La., 60 F.Supp. 235 (1945). As such they were doubtless considered by the jury. However, since in my view the clear and present danger test requires a judicial determination that an unambiguous threat has been made, the jury’s apparent findings cannot have controlling weight here.