Due Process Cause of the 14th amendment (which applies to the states)

Due Process Clause of the 5th amendment (which applies to the federal government)

AND OTHER HIGH COURT CITATIONS PROVING NO LICENSE IS NECESSARY FOR NORMAL USE OF AN AUTOMOBILE ON  common ways.

“The right of a citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but a common right which he has under his right to life, liberty and the pursuit of happiness. Under this constitutional guaranty one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another’s rights, he will be protected, not only in his person, but in his safe conduct.“ Thompson v. Smith, 154 SE 579, 11 American Jurisprudence, Constitutional Law, Section 329, Page 1135.

“The right of the citizen to travel upon the public highways and to transport his property thereon, in the ordinary course of life and business, is a common right which he has under the right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety.  It includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel, includes the right to drive a horse drawn carriage or wagon thereon or to operate an automobile thereon, for the usual and ordinary purpose of life and business.” – Thompson vs. Smith, supra.; Teche Lines vs. Danforth, Miss., 12 S.20 784.

“… The right of the citizen to drive on a public street with freedom from police interference… Is a fundamental constitutional right” – White, 97 Cal.App.3d.141, 158 Cal.Rptr. 562, 566 – 67 (1979).

“Citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access.” Caneisha Mills v. D.C. 2009.

“The use of the automobile as a necessary adjunct to the earning of a livelihood in modern life requires us in the interest of realism to conclude that the right to use an automobile on the public highways partakes of the nature of a liberty within the meaning of the constitutional guarantees…” Berberian v. Lussier (1958) 139 a2d 869, 672, see also: Schecter v. Killingsworth, 380 p.20136, 140; 93 Ariz. 273 (1963).

“The right to operate a motor vehicle [an automobile] upon the public streets and highways 15 not a mere privilege. It is a right of liberty, the enjoyment of which is protected by the guarantees of the federal and state constitutions.” Adams v. City of Pocatello, 416 p.2d 46, 48; 91 Idaho 99 (1966).

“A traveler has an equal right to employ an automobile as a means of transportation and to occupy the public highways with other vehicles in common use.” Campbell v. Walker, 78 Atl. 601, 603, 2 Boyce (Del.) 41.

“The owner of an automobile has the same right as the owner of other vehicles to use the highway, a traveler on foot has the same right to the use of the public highways as an automobile or any other vehicle.” Simeone v. Lindsay, 65 Atl. 778, 779; Hannigan v. Wright, 63 Atl. 234, 236.

“The right of the citizen to drive on the public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality is a Fundamental constitutional right which must be protected by the courts.“ People v. Horton 14 Cal. App. 3rd 667 (1971).

“The right to make use of an automobile as a vehicle of travel long the highways of the state, is no longer an open question. The owners thereof have the same rights in the roads and streets as the drivers of horses or those riding a bicycle or traveling in some other vehicle.” House v. Cramer, 112 N.W. 3; 134 Iowa 374; Farnsworth v. Tampa electric co. 57 so. 233, 237, 62 Fla. 166.

“The automobile may be used with safety to others users of the highway, and in its proper use upon the highways there is an equal right with the users of other vehicles properly upon the highways. The law recognizes such right of use upon general principles.” Brinkman v Pacholike, 84 N.E. 762, 764, 41 Ind. App. 662, 666.

“The law does not denounce motor carriages, as such, on public ways. They have an equal right with other vehicles in common use to occupy the streets and roads. It is improper to say that the driver of the horse has rights in the roads superior to the driver of the automobile. Both have the right to use the easement.” Indiana Springs Co. V. Brown, 165 Ind. 465, 468.

“A highway is a public way open and free to any one who has occasion to pass along it on foot or with any kind of vehicle.” Schlesinger v. City of Atlanta, 129 S.E. 861, 867, 161 Ga. 148,159; Holland v. Shackelford, 137 S.E. 2d 298, 304, 220 Ga. 104; Stavola v. Palmer, 73 a.2d 831, 838,136 Conn. 670.

“There can be no question of the right of automobile owners to occupy and use the public streets of cities, or highways in the rural districts.” Liebrecht v. Crandall, 126 N.W. 69, 110 Minn. 454, 456.

“The word ‘automobile’ connotes a pleasure vehicle designed for the transportation of persons on highways.” – American Mutual Liability Ins. Co. vs. Chaput, 60 A.2d 118, 120; 95 NH 200.

Saenz v. Roe, 526 U.S. 489, 498, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). The constitutional right to travel “embraces at least three different components”:

[1] the right of a citizen of one State to enter and to leave another State,

[2] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and

[3] for those travelers who elect to be permanent residents, the right to be treated like other citizens of that State.

A law only implicates this right when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right.

ArtIV.S2.C1.13 Right to Travel and Privileges and Immunities Clause

Article IV, Section 2, Clause 1:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

In Saenz v. Roe, the Court characterized the constitutional right to travel as having at least three different components:

It protects:
[1]the right of a citizen of one State to enter and to leave another State,
[2] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and,
[3] for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.⁴

Footnotes

1.  Jump to essay-1See, e.g., Ward v. Maryland, 79 U.S. 418, 430 (1870) ([The Privileges and Immunities] clause plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union . . . .); Paul v. Virginia, 75 U.S. 168, 180 (1868) (stating that the Privileges and Immunities Clause includes the right of free ingress into other States, and egress from them), overruled on other grounds by United States v. S.-E. Underwriters Ass’n, 322 U.S. 533 (1944); see generally United States v. Guest, 383 U.S. 745, 762–67 (1966) (Harlan, J., concurring in part and dissenting in part) (surveying cases).
2.  Jump to essay-2See Guest, 383 U.S. at 759 (Although there have been recurring differences in emphasis within the Court as to the source of the constitutional right of interstate travel, there is no need here to canvass those differences further. All have agreed that the right exists.).
3.  Jump to essay-3Doe v. Bolton, 410 U.S. 179, 200 (1973), abrogated on other grounds by Dobbs v. Jackson Women’s Health Org., No. 19-1393 (U.S. June 24, 2022).
4.  Jump to essay-4526 U.S. 489, 500 (1999) (numbering added).
5.  Jump to essay-5Id. at 501 (citing Articles of Confederation of 1781 art. IV, § 1).
6.  Jump to essay-6Id. at 501–502.
7.  Jump to essay-7Id. at 502–03 (citing U.S. Const. amend. XIV, § 1). The Commerce Clause is another potential textual basis for the right to travel. See Guest, 383 U.S. at 758 (citing Edwards v. California, 314 U.S. 160, 173 (1941)).
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Amdt14.S1.8.13.2 Interstate Travel as a Fundamental Right

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The doctrine of the right to travel actually encompasses three separate rights, of which two have been notable for the uncertainty of their textual support. The first is the right of a citizen to move freely between states, a right venerable for its longevity, but still lacking a clear doctrinal basis.¹ The second, expressly addressed by the first sentence of Article IV, provides a citizen of one state who is temporarily visiting another state the Privileges and Immunities of a citizen of the latter state.² The third is the right of a new arrival to a state, who establishes citizenship in that state, to enjoy the same rights and benefits as other state citizens. This right is most often invoked in challenges to durational residency requirements, which require that persons reside in a state for a specified period before taking advantage of the benefits of that state’s citizenship.

Footnotes

1.  Jump to essay-1Saenz v. Roe, 526 U.S. 489 (1999). For the purposes of this case, we need not identify the source of [the right to travel] in the text of the Constitution. The right of ‘free ingress and regress to and from’ neighboring states which was expressly mentioned in the text of the Articles of Confederation, may simply have been ‘conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.’ Id. at 501 (citations omitted).
2.  Jump to essay-2Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) (without some provision . . . removing from citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.).
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What other rights and freedoms relate to the right to freedom of movement?

The right to freedom of movement may also be relevant to:

• the right to liberty and security under article 9 of the ICCPR
• the right to participate in public life under article 25 of the ICCPR
• the right to peaceful assembly under article 21 of the ICCPR
• the right to freedom of association under article 22 of the ICCPR
• the right to privacy under article 17 of the ICCPR
• the conditions for expulsion of aliens in article 13 of the ICCPR.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 12

• Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
• Everyone shall be free to leave any country, including his own.
• The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
• No one shall be arbitrarily deprived of the right to enter his own country.

See also: ICCPR article 13; CRC article 10; CRPD article 18; CERD article 5; CEDAW article 15.

Motor Vehicle: 18 USC Part 1 Chapter 2 Section 31 Definitions:

“(6) Motor vehicle. – the term ‘motor vehicle’ means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways…” .
“10) the term ‘used for commercial purposes’ means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit.
“A motor vehicle or automobile for hire is a motor vehicle, other than an automobile stage, used for the transportation of persons for which remuneration is received.” – International Motor Transit Co. Vs. Seattle, 251 p. 120.
“The term ‘motor vehicle’ is different and broader than the word ‘automobile.'” – City of Dayton vs. Debrosse, 23 NE.2d 647, 650; 62 Ohio App. 232.
“Thus self – driven vehicles are classified according to the use to which they are put rather than according to the means by which they are propelled” – Ex Parts Hoffert, 148 NW 20.
“The Supreme Court, in Arthur v. Morgan, 112 U.S. 495, 5 S.Ct. 241, 28 L.ed. 825, held that carriages were properly classified as household effects, and we see no reason that automobiles should not be similarly disposed of.” Hillhouse v United States, 152 f. 163, 164 (2nd Cir. 1907).
“… A citizen has the right to travel upon the public highways and to transport his property thereon…” State vs. Johnson, 243 p. 1073; Cummins vs. Homes, 155 p. 171; Packard vs. Banton, 44 S.Ct. 256; Hadfield vs. Lundin, 98 wash 516, Willis vs. Buck, 263 p. L 982; Barney vs. Board of railroad commissioners, 17 P.2d 82.
“The use of the highways for the purpose of travel and transportation is not a mere privilege, but a common and fundamental right of which the public and the individual cannot be rightfully deprived.” Chicago motor coach vs. Chicago, 169 NE 22; Ligare vs. Chicago, 28 ne 934; Boon vs. Clark, 214 SSW 607; 25 Am.Jur. (1st) Highways Sect.163.
“The right of the citizen to travel upon the highway and to transport his property thereon in the ordinary course of life and business… 15 the usual and ordinary right of the citizen, a right common to all.” – Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781.
“Every citizen has an unalienable right to make use of the public highways of the state; every citizen has full freedom to travel from place to place in the enjoyment of life and liberty.” People v. Nothaus, 147 Colo. 210.
“No state government entity has the power to allow or deny passage on the highways, byways, nor waterways… Transporting his vehicles and personal property for either recreation or business, but by being subject only to local regulation i.e., safety, caution, traffic lights, speed limits, etc. Travel is not a privilege requiring licensing, vehicle registration, or forced insurances.” Chicago Coach Co. V. City of Chicago, 337 Ill. 200, 169 N.E. 22.
“Traffic infractions are not a crime.” People v. Battle.
“Persons faced with an unconstitutional licensing law which purports to require a license as a prerequisite to exercise of right… May ignore the law and engage with impunity in exercise of such right.” Shuttlesworth v. Birmingham 394 U.S. 147 (1969).
“The word ‘operator’ shall not include any person who solely transports his own property and who transports no persons or property for hire or compensation:” Statutes at Large California Chapter 412 p.83.
“Highways are for the use of the traveling public, and all have the right to use them in a reasonable and proper manner; the use thereof is an inalienable right of every citizen.” Escobedo v. State 35 C2d 870 IN 8 Cal Jur 3d p.27.
“Right – – a legal right, a Constitutional Right means a Right protected by the law, by the constitution, but government does not create the idea of right or original rights; it acknowledges them… ” Bouvier’s Law Dictionary, 1914, p. 2961.
“Those who have the right to do something cannot be licensed for what they already have right to 00 as such license would be meaningless.” City of Chicago v Collins 51 NE 907, 910.
“A license means leave to do a thing which the licensor could prevent.” Blatz Brewing Co. V. Collins, 160 P.2d 37, 39; 69 Cal. A. 2. 639.
“The object of a license is to confer a right or power, which does not exist without it.” Payne v. Massey (19) 196 SW 2nd 493, 145 Tex 273.
“The court makes it clear that a license relates to qualifications to engage in profession, business, trade or calling; thus, when merely traveling without compensation or profit, outside of business enterprise or adventure with the corporate state, no license is required of the natural individual traveling for personal business, pleasure and transportation.” Wingfield v. Fielder 20 ca. 3d 213 (1972).
“If [state] officials construe a vague statute unconstitutionally, the citizen may take them at their word, and act on the assumption that the statute is void.” – Shuttlesworth v. Birmingham 394 U.S. 147 (1969).
“With regard particularly to the U.S. Constitution, it is elementary that aright secured or protected by that document cannot be overthrown or impaired by any state police authority.” Donnolly vs. Union Sewer Pipe Co., 184 us 540; Lafarier vs. Grand Trunk R.R. Co., 24 a. 848; O’Neil vs. Providence Amusement Co., 108 A. 887.
“The right to travel (called the right of free ingress to other states, and egress from them) is so fundamental that it appears in the articles of confederation, which governed our society before the constitution.” (Paul v. Virginia).
“[T]he right to travel freely from state to state … Is a right broadly assertable against private interference as well as governmental action. Like the right of association, it is a virtually unconditional personal right, guaranteed by the constitution to us all.” (U.S. Supreme Court, Shapiro v. Thompson).
Edgerton, Chief Judge: “Iron curtains have no place in a free world… ‘Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the constitution.” Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.ed. 186.
“Our nation has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.” Id., at 197. Kent vs. Dulles see Vestal, Freedom of Movement, 41 Iowa L. Rev. 6, 13 – 14.
“The validity of restrictions on the freedom of movement of particular individuals, both substantively and procedurally, is precisely the sort of matter that is the peculiar domain of the courts.” comment, 61 Yale L.J. at page 187.
“A person detained for an investigatory stop can be questioned but is “not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” Justice White, Hiibel.
“Automobiles have the right to use the highways of the state on an equal footing with other vehicles.” Cumberland Telephone & Telegraph Co. v. Yeiser 141 Kentucky 15.
“Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or electric car, or by bicycle, or astride of a horse, subject to the sole condition that he will observe all those requirements that are known as the law of the road.” Swift v City of Topeka, 43 Kansas 671, 674.
The Supreme Court said in U.S. v Mersky (1960) 361 U.S. 431: an administrative regulation, of course, is not a “statute”.
“A traveler on foot has the same right to use of the public highway as an automobile or any other vehicle.” Cecchi v. Lindsay, 75 Atl. 376, 377, 1 Novae (Del.) 185.
“Automotive vehicles are lawful means of conveyance and have equal rights upon the streets with horses and carriages.” Chicago Coach Co. v. City of Chicago, 337 Ill. 200, 205; see also: Christy v. Elliot, 216 Ill. 31; Ward v. Meredith, 202 Ill. 66; Shinkle v. McCullough, 116 Ky. 960; Butler v. Cabe, 116 Ark. 26, 28 – 29.
“Automobiles are lawful vehicles and have equal rights on the highways with horses and carriages.” Daily v. Maxwell, 133 S.W. 351, 354. Matson v. Dawson, 178 N.W. 2d 589, 591.
“A farmer has the same right to the use of the highways of the state, whether on foot or in a motor vehicle, as any other citizen. Draffin v. Massey, 92 S.E.2d 38, 42.
“Persons may lawfully ride in automobiles, as they may lawfully ride on bicycles.” Doherty v. Ayer, 83 N.E. 677,197 Mass. 241, 246; Molway v. City of Chicago, 88 N.E. 485, 486, 239 Ill. 486; Smiley v. East St Louis Rv. Co., 100 N.E. 157, 158.
“A soldier’s personal automobile is part of his ‘household goods[.]” U.S. V Bomar, C.A.S.(Tex.), 8 F.3d 226, 235″ 19A Words and Phrases – Permanent Edition (West) Pocket Part 94. “[it is a jury question whether … an automobile … is a motor vehicle[.]” United States v Johnson, 718 F.20 1317, 1324 (5th Cir. 1983).
Other right to use an automobile cases:

• Edwards vs. California, 314 U.S. 160
• Twinng vs New Jersey, 211 U.S. 78
• Williams vs. Fears, 179 U.S. 270, at 274
• Crandall vs. Nevada, 6 Wall. 35, at 43 – 44
• The Passenger Cases, 7 Howard 207, at 492
• U.S. vs. Guest, 383 U.S. 745, At 757 – 758 (1966)
• Griffin vs. Breckenridge, 403 U.S. 88, at105 – 106 (1971)
• Califano vs. Tors, 435 U.S. 1, At 4, Note 6   – Shapiro vs. Thompson, 324 U.S. 618 (1969)
• Alifano vs. Aznavavorian, 439 U.S. 170 At 176 (1978)

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READ UP MORE….. on Malicious Prosecution and Thompson Vs. Clark and other SCOTUS Rulings here

Footnotes

1. Saenz v. Roe, 526 U.S. 489 (1999). For the purposes of this case, we need not identify the source of [the right to travel] in the text of the Constitution. The right of “free ingress and regress” to and from neighboring states which was expressly mentioned in the text of the Article of Confederation, may simply have been ‘conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.’ Id. at 501 (citations omitted).
2. Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) (without some provision . . . removing from citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.).
3. Saenz v. Roe, 526 U.S. 489, 502–03 (1999).
4. Dunn v. Blumstein, 405 U.S. 330, 334 (1972). Because the right to travel is implicated by state distinctions between residents and nonresidents, the relevant constitutional provision is the Privileges and Immunities Clause, Article IV, § 2, cl. 1.
5. Intrastate travel is protected to the extent that the classification fails to meet equal protection standards in some respect. Compare Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970) (three-judge court), aff’d. per curiam, 405 U.S. 1035 (1972), with Arlington County Bd. v. Richards, 434 U.S. 5 (1977). The same principle applies in the commerce clause cases, in which discrimination may run against in-state as well as out-of-state concerns. Cf. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951).
6. Shapiro v. Thompson, 394 U.S. 618, 629–31, 638 (1969); Dunn v. Blumstein, 405 U.S. 330, 338–42 (1972); Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974); Jones v. Helms, 452 U.S. 412, 420–21 (1981). See also Oregon v. Mitchell, 400 U.S. 112, 236–39 (1970) (Justices Brennan, White, and Marshall), and id. at 285–92 (Justices Stewart and Blackmun and Chief Justice Burger).
7. Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis by Court); Graham v. Richardson, 403 U.S. 365, 375–76 (1971).
8. Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Edwards v. California, 314 U.S. 160 (1941) (both cases in context of direct restrictions on travel). The source of the right to travel and the reasons for reliance on the Equal Protection Clause are questions puzzled over and unresolved by the Court. United States v. Guest, 383 U.S. 745, 758, 759 (1966), and id. at 763–64 (Justice Harlan concurring and dissenting), id. at 777 n.3 (Justice Brennan concurring and dissenting); Shapiro v. Thompson, 394 U.S. 618, 629–31 (1969), and id. at 671 (Justice Harlan dissenting); San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 31–32 (1973); Jones v. Helms, 452 U.S. 412, 417–19 (1981); Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66–68 (Justice Brennan concurring), 78-81 (Justice O’Connor concurring).
9. 394 U.S. 618 (1969).
10. The durational residency provision established by Congress for the District of Columbia was also voided. 394 U.S. at 641–42.
11. 394 U.S. at 627–33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. 1969), aff’d sub nom. Wyman v. Bowens, 397 U.S. 49 (1970), struck down a provision construed so as to bar only persons who came into the state solely to obtain welfare assistance.
12. 394 U.S. at 633–38. Shapiro was reaffirmed in Graham v. Richardson, 403 U.S. 365 (1971) (striking down durational residency requirements for aliens applying for welfare assistance), and in Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) (voiding requirement of one year’s residency in the county as a condition to indigent’s receiving nonemergency hospitalization or medical care at county’s expense). When Connecticut and New York reinstituted the requirements, pleading a financial emergency as the compelling state interest, they were summarily rebuffed. Rivera v. Dunn, 329 F. Supp. 554 (D. Conn. 1971), aff’d per curiam, 404 U.S. 1054 (1972); Lopez v. Wyman, Civ. No. 1971-308 (W.D.N.Y. 1971), aff’d per curiam, 404 U.S. 1055 (1972). The source of the funds, state or federal, is irrelevant to application of the principle. Pease v. Hansen, 404 U.S. 70 (1971).
13. 405 U.S. 330 (1972). But see Marston v. Lewis, 410 U.S. 679 (1973), and Burns v. Fortson, 410 U.S. 686 (1973). Durational residency requirements of five and seven years respectively for candidates for elective office were sustained in Kanapaux v. Ellisor, 419 U.S. 891 (1974), and Sununu v. Stark, 420 U.S. 958 (1975).
14. For additional discussion of durational residence as a qualification to vote, see Voter Qualifications, supra.
15. Saenz v. Roe, 526 U.S. 489, 505 (1999).
16. 419 U.S. 393 (1975). Justices Marshall and Brennan dissented on the merits. Id. at 418.
17. 419 U.S. at 409. But the Court also indicated that the plaintiff was not absolutely barred from the state courts, but merely required to wait for access (which was true in the prior cases as well and there held immaterial), and that possibly the state interests in marriage and divorce were more exclusive and thus more immune from federal constitutional attack than were the matters at issue in the previous cases. The Court also did not indicate whether it was using strict or traditional scrutiny.
18. Starns v. Malkerson, 326 F. Supp. 234 (D. Minn. 1970), aff’d per curiam, 401 U.S. 985 (1971). Cf. Vlandis v. Kline, 412 U.S. 441, 452 & n.9 (1973), and id. at 456, 464, 467 (dicta). In Memorial Hospital v. Maricopa County, 415 U.S. 250, 256 (1974), the Court, noting the results, stated that some waiting periods . . . may not be penalties and thus would be valid.
19. Saenz v. Roe, 526 U.S. at 505.
20. Zobel v. Williams, 457 U.S. 55 (1982). Somewhat similar was the Court’s invalidation on equal protection grounds of a veterans preference for state employment limited to persons who were state residents when they entered military service; four Justices also thought the preference penalized the right to travel. Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986).
21. La Tourette v. McMaster, 248 U.S. 465 (1919), upholding a two-year residence requirement to become an insurance broker, must be considered of questionable validity. Durational periods for admission to the practice of law or medicine or other professions have evoked differing responses by lower courts.
22. E.g., McCarthy v. Philadelphia Civil Service Comm’n, 424 U.S. 645 (1976) (ordinance requiring city employees to be and to remain city residents upheld). See Memorial Hospital v. Maricopa County, 415 U.S. 250, 255 (1974). See also Martinez v. Bynum, 461 U.S. 321 (1983) (bona fide residency requirement for free tuition to public schools).
23. Jones v. Helms, 452 U.S. 412 (1981) (statute made it a misdemeanor to abandon a dependent child but a felony to commit the offense and then leave the state).

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Download Here this Recommended Citation

In Watts v. United States, 394 U.S. 705 (1969), the Supreme Court held, without the benefit of oral argument, that the First Amendment does not protect true threats. The Court also explained that political hyperbole does not qualify as such a threat.

‘If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.’

In August 1966, an 18-year-old African American war protestor, Robert Watts, attended an anti-war rally at the Washington Monument. During a small discussion group designed to discuss the problem of police brutality, Watts allegedly said: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. 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.”

An investigator for the Army Counter Intelligence Corps overheard Watts’s intemperate remarks, which led to his arrest for violating a federal law prohibiting threats against the president. A federal jury convicted Watts of violating the statute, and a divided District of Columbia Circuit Court of Appeals affirmed.

Court said anti-war protester’s threat was crude political hyperbole

On further appeal, the Supreme Court reversed in a 5-4 per curiam opinion. The majority determined that the federal statute prohibiting threats against the president was constitutional and that true threats receive no First Amendment protection.

However, the majority also determined that Watts’s crude statements were political hyperbole rather than true threats. “What is a threat must be distinguished from what is constitutionally protected speech,” the majority wrote. “The language of the political arena … is often vituperative, abusive, and inexact.”

The Court agreed with Watts’s counsel’s characterization of Watts’s speech as “a kind of very crude offensive method of stating a political opposition to the President” that did not qualify as a true threat.

Justice William O. Douglas concurred in an opinion that would have gone further than the per curiam majority opinion and invalidated the federal statute. “Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution,” he concluded. Justice Abe Fortas, joined by John Marshall Harlan, dissented in a very short opinion questioning whether the Court should have taken the case.

Watts factors used in separating true threats from speech protected by First Amendment

Watts remains an important decision for First Amendment jurisprudence because it stands for the principle that true threats are not protected expression. The Watts factors are the three factors used by the Court in separating free speech from true threats.

Unfortunately, in Watts the Court did not establish a clear definition of what speech constitutes a true threat, leaving the lower courts to develop different tests.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.

cited https://mtsu.edu/first-amendment/article/707/watts-v-united-states

3 Prong Obscenity Test

The Watts factors refers to three factors the U.S. Supreme Court identified in its initial true-threat decision

Watts Factors

The Watts factors refers to three factors the U.S. Supreme Court identified in its initial true-threat decision Watts v. United States (1969) to distinguish between protected speech and a true threat. 

3 factors in separating true threats from free speech

The three factors identified by the Court in Watts include:

1. the context of the statement or statements in question;
2. the reaction of the recipient or listeners; and
3. whether the threat was conditional.

In Watts, federal authorities charged young, African-American protestor Robert Watts with violating a federal threat law criminalizing threats against the President.

Supreme Court: Anti-war comments were political hyperbole,

protected by First Amendment

At an anti-war rally, Watts allegedly said: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. 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.”

Watts’ reference to L.B.J. referred to then-U.S. President Lyndon Baines Johnson.   Lower courts upheld his conviction. 

The Supreme Court, in a per curiam opinion, determined that Mr. Watts had engaged in a crude form of political hyperbole rather than utter a true threat.  The Court identified what later came to be known as the Watts factors.  These included that Watts made his statements during a political rally, that those who overhead his remarks laughed, and his statement was conditional rather than definitive.

Still today, some lower courts use the Watts factors to determine whether speech crosses the line into the realm of true threats.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2017.

cited https://mtsu.edu/first-amendment/article/1525/watts-factors

Watts Factors

The Watts factors refers to three factors the U.S. Supreme Court identified in its initial true-threat decision Watts v. United States (1969) to distinguish between protected speech and a true threat. 

3 factors in separating true threats from free speech

The three factors identified by the Court in Watts include:

1. the context of the statement or statements in question;
2. the reaction of the recipient or listeners; and
3. whether the threat was conditional.

In Watts, federal authorities charged young, African-American protestor Robert Watts with violating a federal threat law criminalizing threats against the President. 

Supreme Court: Anti-war comments were political hyperbole, protected by First Amendment

At an anti-war rally, Watts allegedly said: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. 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.”

Watts’ reference to L.B.J. referred to then-U.S. President Lyndon Baines Johnson.   Lower courts upheld his conviction. 

The Supreme Court, in a per curiam opinion, determined that Mr. Watts had engaged in a crude form of political hyperbole rather than utter a true threat.  The Court identified what later came to be known as the Watts factors.  These included that Watts made his statements during a political rally, that those who overhead his remarks laughed, and his statement was conditional rather than definitive.

Still today, some lower courts use the Watts factors to determine whether speech crosses the line into the realm of true threats.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2017.

By David L. Hudson Jr.