'The Lord Shall Smite Thee': Not a True Threat

I don't know whether Benton County, Michigan, Judge Alfred Butzbaugh really is "dumb," "corrupt," and "racist," as the Rev. Edward Pinkney claimed in a tirade published by the Benton Harbor People's Tribune a couple of years ago. But he does seem to be pretty thin-skinned. Butzbaugh, who presided over the 2007 trial in which Pinkney was convicted of buying votes in a local recall election, sentenced the activist minister to probation. After the insulting article appeared, however, Pinkney's probation was revoked. For dissing Butzbaugh, he was sentenced to prison for three to 10 years (by another judge), based on his violation of a probation condition barring "any assaultive, abusive, defamatory, demeaning, harassing, violent, threatening, or intimidating behavior, including the use, through any electronic or print media under [his] care, custody or control, of the mail, e-mail or internet." Yesterday a state appeals court ruled that the ban on "defamatory" or "demeaning" speech unjustifiably impinged on Pinkney's First Amendment rights, since it was not related to his crime or to protecting public safety. The court also rejected the claim that Pinkney threatened Butzbaugh when he urged him to repent by paraphrasing a passage from Deuternonomy:

Judge Butzbaugh, it shall come to pass; if thou continue not to hearken unto the voice of the Lord thy God to observe to do all that is right; which I command thee this day, that all these Curses shall come upon you and your family, curses shalt be in the City of St. Joseph and Cursed shalt thou be in the field, cursed shall come upon you and your family and over take thee; cursed shall be the fruit of thy body. The Lord shall smite thee with consumption and with a fever and with an inflammation and with extreme burning. They the demons shall Pursue thee until thou persist.

The punishment of biblical rhetoric attracted the interest of several religious groups, which filed a brief (PDF) on Pinkney's behalf. The appeals court decision is here (PDF).

Last week I noted the First Amendment questions raised by probation restrictions imposed on a South Dakota marijuana activist. Last month, after a white supremacist was arrested for threatening federal judges, I discussed the difference between fiery rhetoric and true threats.