Robert Watts v. United States

402 F.2d 676, 131 U.S. App. D.C. 125, 1968 U.S. App. LEXIS 5471

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 25, 1968
• Docket: 21528_1
• Status: Published

Opinions

BURGER, Circuit Judge:

This is an appeal from a conviction for threatening the life of the President of the United States in violation of 18 U.S. C. § 871(a) (1964).¹

Appellant attended a DuBois Club meeting and participated in a discussion group dealing with police brutality. In the course of these discussions, Appellant allegedly made a statement that he would refuse induction into the armed forces and “if they ever make me carry a rifle the first person I want [or would want or would like to have] in my sights is LBJ.” ² There is evidence that he also stated that Negroes should not shoot their “black brothers” or Vietnamese. The following day he was arrested by Secret Service agents for threatening the life of the President. When arrested, Appellant was found to possess marijuana and an information was filed in the Court of General Session charging him with this misdemeanor.

Prior to his trial for threatening the President, Appellant moved to dismiss the indictment on the ground that his words did not constitute a “threat” within the language of the statute. This motion was denied. _ Subsequently, m the marijuana prosecution, Appellant moved to suppress the evidence on the ground that the arrest and search were illegal since the arresting officers lacked probable cause to believe that a felony — threatening the life of the President had been committed. The Court of General Sessions granted the motion. The governments request for reconsideration being denied, the government nolle prossed the marijuana charge.

The felony charge of threatening the President was tried in the District Court and Appellant was convicted.³ Appellant raises three grounds for reversal (1) that the evidence was insufficient to support a finding that he uttered a “threat” against the President; (2) that a conviction would violate the First Amendment; and (3) that the prior judicial determination on the motion to suppress in the Court of General Sessions operated as collateral estoppel to the felony charge in the District Court,

Turning to the language of 18 U.S.C. § 871 (1964), we see that what it prohibits is “knowingly and willfully * * * mak[ing] any * * * threat to take the life of or to inflict bodily harm upon the President * * On its face, and under conventional standards of statutory construction, the statute prohibits the knowing and willful act of threatening the life of the President. The forbidden utterance is the criminal act; the adjective “willfully” precedes and modifies “threaten” ; it has no relation whatever to the act of killing or injuring. The act of killing or assaulting is a separate crime. Therefore, the District Judge correctly instructed the jury: “It is the making of the threat, not the intent to carry it out, that violates the law.”

Given this clarity of the statute itself, there is little necessity to turn to the legislative history, except to discern the broad purposes of Congress. However, in light of the dissent’s reliance on some Frances of an individual Congressman in terms that would actually alter the clear meaning of the statute, we turn to |.be total legislative history. The record of the House debates on section 871 does not, as the dissent asserts; “indicat[e] that Congress considered specific intent to execute the threat an element of the offense * * . * ” Indeed the House record is to the contrary.⁴

The ultimate purpose underlying section 871 is to deter the act of killing or injuring the President by deterring the act of theatening his life or safety. As Congressman Webb, the proponent of the bill, asserted: “That is one reason why we want this statute — in order to decrease the possibility of actual assault by punishing threats to commit an assault.” 53 Cong.Rec. 9377-78 (1916) (emphasis added). The act of willfully threatening was itself made the crime not only to deter the threat but also the consequences of verbal or pubKshed threats in terms of their incitement of others — including those less stable an the speaker and perhaps more suggestible. Congressman Webb’s expli cation of the rationale behind a prohibition of "threats" is of interest:

A bad man can make a public threat, and put somebody else up to committing a crime against the Chief Executive, and that is where the harm comes. The man who makes the threat is not himself very dangerous, but he is Hable to put devilment in the mind of some poor fellow who does try to harm him [the President].

Id. at 9377 (emphasis added). Prophetically, Congressman Webb added: “I think the time may come when we will have great need for this kind of a statute.” This review of the factors which prompted the promulgation of legislation prohibiting “threats” would seem to cast doubt upon the assertion of the dissent that “Congress considered specific intent to execute the threat an element of the offense.”⁵

The dissent correctly quotes Congressman Webb’s comment that “I think it must be a willful intent to do serious injury to the President.” But we need to look at the context in which this statement was made. Some Representatives were troubled by the possibility that in the absence of the need for a “willful” threat, a man might be convicted for mailing to a friend, as a matter of news, an article he had discovered which contained a threat by the author of the article on the life of the President.⁶ A reading of the entire debate on section 871 reveals that Congressman Webb’s comment about “willful intent to do serious injury to the President” is the only time that the concept of “willful intent” was joined with the act of killing or injuring. Without exception, every other reference to “willful intent” was in the context of a “willful intent to threaten”. Reviewing the entire legislative debate on section 871, we conclude that, as is so often the case when various members address themselves extemporaneously to statutory language, these speeches are not without ambiguity; certainly the debate is far from indicating a Congressional desire to demand proof that the accused “made the statement with the specific intent to execute it” as Judge Wright argues.⁷ Indeed if the legislative history were to be so read, it would repeal the statute.

Prior decisions construing section 871 similarly evidence the interpretation that it is the threat which must be “knowingly and willfully” made and not that the intent to execute the content of the threat be an element. To meet these requirements the government must establish that “the maker [of the threat] comprehends the meaning of the words uttered by him” and that “the maker voluntarily and intentionally utters them as the declaration of an apparent determination to carry them into execution.” Ragansky v. United States, 253 F. 643, 645 (7th Cir. 1918). See Pierce v. United States, 365 F.2d 292, 294 (10th Cir. 1966). There is no requirement that the person uttering the threats have an intention to carry them out. Cf. Michaud v. United States, 350 F.2d 131 (10th Cir. 1965). Nor is it a defense that the words were intended merely as a jest. Pierce v. United States, supra; Ragansky v. United States, supra.

Appellant contends that the words he used could not be interpreted as a threat because they did not contain a statement of present intention to injure the President. Appellant asserts that his statement was a matter of common hyperbole rather than a true threat, thát it expressed a desire rather than an intention to carry it out, and that it was conditional upon his being forced — by involuntary service — to carry a rifle whereas he had stated an intention to avoid induction into the Army.

Appellant’s conditional theory stems from the principle of the classic case of Tuberville v. Savage, 86 Eng.Rep. 684 (K.B. 1669), in which it was held that there was no assault where the defendant, at assize time, placed his hand on his sword and stated: “If it were not assize-time, I would not take such language from you.” If an utterance is conditioned on factors which cannot be fulfilled, the condition negates any threat. Such a condition removes the apparent intent which is a necessary element. But the fact that the threat is conditional does not per se prevent it from being a violation of 18 U.S.C. § 871 (1964). Convictions have been affirmed⁸ and indictments sustained⁹ where the language was conditional. The “condition” of Appellant’s submitting to induction into the Army does not negate the presence of apparent present intent since it is a matter within his control.¹⁰ Statements with conditions such as “if I had the opportunity” or “if I had the power” or “if I ever get close enough to him,” have been held violations of the statute. See notes 8 & 9 supra,.

Appellant also claims that, when he stated he “would want” or “would like to have” or “wanted” to have “LBJ” in his rifle sights, he was merely expressing a desire, and not a threat. Other convictions under this statute have been affirmed where the statement was essentially in the form, as Appellant urges his statements were, of mere expressions of desires or wishes.¹¹ Appellant relies, however, on two eases in which there was found to be no statement of apparent intention to inflict harm. In United States v. Daulong, 60 F.Supp. 235 (W.D.La.1945), the indictment was quashed because it charged that the accused only stated he “had a notion” to kill the President and that, if no one else did it, he “felt like” killing him. The court found these words to lack any “expression of determination or intent to do the act itself.” In United States v. Marino, 148 F.Supp. 75 (N.D.Ill.1957), an indictment was dismissed which charged that the accused had posted signs reading: “There can be slain no sacrifice to God more acceptable than an unjust President.” Here again, the court found no expression of intent to perform the act in question.

Unlike these cases, Appellant’s words, considered in context, reasonably permit an inference that he was uttering a threat. The naked words do not always tell the whole story. For example, the words “I will see you in the street at sundown” meant, in certain times and places, a challenge to a shooting. The context was all important — on Beacon Hill in Boston, the same words at the same period might have had a totally different meaning or none at all. It is the message the words communicate that is at issue, and what that message meant was a question of fact for the jury under appropriate instructions. On this appeal, there is no challenge to the instructions.

Appellant’s counsel urged the jury, as he does on appeal, that Appellant was expressing a mere desire and that his statements were gratuitous hyperbole. The District Judge charged the jury in accordance with the case law developed under the statute, including the definition of threat. He also instructed the jury that “a declaration of a mere desire to injure is not a threat” and that they were to consider the context and circumstances in which the alleged statement was made.

Among the circumstances that the jury could have considered in determining the import of the words here used was the testimony that in speaking Appellant made a gesture as if sighting down the barrel of a rifle. Appellant points out that his remarks were greeted by laughter and applause, and argues that this negates any acceptance by the listeners as a genuine threat. But it has not been unknown for laughter and applause to have sinister implications for the safety of others. History records that applause and laughter frequently greeted Hitler’s predictions of the future of the German Jews. Even earlier, the Roman holidays celebrated in the Colosseum often were punctuated by cheers and laughter when the Emporer gestured “thumbs down” on a fallen gladiator. However, since Appellant did not claim at trial that his words were uttered in jest, we need not reach or decide what instructions would have been appropriate had he made such a claim except to observe in passing that subjective intent of the speaker, standing alone, has not been considered dispositive.¹² We need not decide what the situation would be if one accused under this statute claimed that he was acting in jest and showed that his listeners considered the utterance to be such. Here the Appellant laid no evidentiary basis for an instruction, that his statements were uttered in jest and accepted as such by those who heard him. On the evidence and contentions developed at trial, a jury could reasonably have concluded either that the words were or that they were not a threat and either conclusion is within the range of a permissible verdict.¹³

II.

Appellant’s second contention is that his utterances are protected by the First Amendment and cannot be made the basis of a criminal prosecution. He argues that they are not words that by their very utterance tend to inflict injury or incite an immediate breach of the peace, Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and that they did not constitute a clear and present danger of a substantive evil which Congress has the power to prevent. Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951); American Communications Ass’n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950). See also Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962).¹⁴

Meeting these claims directly, we conclude that the First Amendment does not prevent proscription of utterances that comprise knowing and willful threats to the life or safety of the President. Although freedom of speech is indeed one of “our most precious freedoms,” Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), and needs “breathing space to survive,” id. at 604, 87 S.Ct. 675,

[a]n analysis of the leading cases in [the Supreme Court] which have involved direct limitations on speech * * * will demonstrate that * * * this is not an unlimited, unqualified right, but that the societal value of speech must, on occasion, be subordinated to other values and considerations.

Dennis v. United States, 341 U.S. 494, 503, 71 S.Ct. 857, 864, 95 L.Ed. 1137 (1951). Simply because first amendment rights are in the “balance,” Congress is not precluded from regulating particular individual activity. Before a decision on constitutionality is reached, “there must be weighed the value to the public of the ends which the regulation may achieve.” Communist Party v. SACB, 367 U.S. 1, 91, 81 S.Ct. 1357, 1407, 6 L.Ed.2d 625 (1961). See also Dennis, supra; American Communications Association, C. I. O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950); Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919).

The basis for section 871 is clear. The Congress arrived at a legislative determination that the safety and freedom of movement of the Chief Executive was of such overriding importance to the well-being of the entire nation that threats which would tend to restrict his capacity to fulfill his duties or incite others to harm his person would not be tolerated. Congressional awareness of past Presidential assassinations in part contributed to the enactment of the 1917 statute.¹⁵ Recent experience with the assassination of three public figures in less than 5 years hardly undermines the conclusion reached by the Congress 50 years ago when it enacted Section 871.

A statute making it a criminal act to utter threats as to citizens generally might well be open to constitutional challenge. Assuming arguendo that a statute might hot be sustained if applied to any threat toward any one of 200 million Americans, the statute here in question must be judged by different stand-' ards, limited as it is to the Chief Magistrate of the nation and his constitutional successors. Threatening language which might be thought tolerable when directed at a private citizen takes on a different hue when directed at the President and the dimensions of the consequences are an important guide.¹⁶

There are unique considerations surrounding the President of the United States. No person in the world, perhaps, is so comprehensively guarded. Yet this intensive protection has not prevented the assassination of four Presidents. In our system, the safety of the Chief Magistrate of the nation is so crucial to the national welfare that, notwithstanding our traditional tolerance of uninhibited and even vicious criticism of a President,¹⁷ it was thought essential to make threats upon the life and safety of the President criminal acts. To appreciate the need to protect a President from danger or the inhibiting effect of threats, one only need recall the shock waves which rocked the entire world in November 1963 when a President was murdered. The enormous political, sociological, and economic consequences of that event are poignant reminders of the evil sought to be avoided by section 871. The assassination, or even attempted assassination, or suspicion of a conspiracy to this end, of no living person can upset the nation’s — even the world’s — equilibrium as does such action directed at a President of the United States.

When the interests to be protected are evaluated in the light of first amendment safeguards, the consequences here sought to be prevented afford a valid basis for reasonable limitation on speech.¹⁸ The impediments which this statutory “regulation causes to entire freedom of individual action” are indeed outweighed by “the value to the public of the ends which the regulation may achieve.” Communist Party v. SACB, supfa, 367 U.S. at 91, 81 S.Ct. 1407. The protection of the President is precisely the type of substantial public interest which can justify prohibitions aimed at preventing substantive evils which can flow from the condemned activity. Cf. NAACP v. Button, 371 U.S. 415, 444, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

Although 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,” Terminello v. City of Chicago, 337 U.S. 1, 5, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1919), a threat on the life of the President is “likely to produce a clear and present danger of a serious substantive evil that rises far ab£>ve public inconvenience, annoyance, or unrest.” Id. Trivial hazards must of course be tolerated if they fall within the purview of the First Amendment,¹⁹ but the turmoil attendant upon the death or disability of a President is hardly a “trivial hazard.” When the gravity of this evil is discounted by the not so improbable likelihood of its occurrence, we conclude that it “justifies such invasion of free speech as is necessary to avoid the danger.” Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 868, 95 L.Ed. 1137 (1951).

Given the sound basis for section 871’s prohibition of threats on the President’s life, we feel that the jury, having acted under instructions not challenged here, was warranted in finding that Appellant had or had not “knowingly and willfully” threatened the life of the President. Here, the import of Appellant’s words were indeed susceptible of an interpretation by the jury that Appellant had made such a threat.²⁰

This statute does not require the jury to undertake the almost impossible task of evaluating Appellant’s subjective mental processes in relation to executing his apparent intent as that intent was manifested by his words and gestures in context.

III.

Appellant also argues that the finding of the jury that his words constituted a threat under 18 U.S.C. § 871 (1964), cannot stand because of the collateral estoppel effect of a prior judicial determination. His claim is based upon the suppression by a Court of General Sessions Judge of the marijuana found on Appellant at the time of his arrest. The Judge found that there had been no probable cause for the Secret Service agents to believe that Appellant’s words constituted a threat to the President. It is settled that a defendant in a criminal case can assert collateral estoppel against the Government in the proper circumstances.²¹ Collateral estoppel will prevent the relitigation of an issue that was. necessary to a prior judgment or final disposition of a case.²²

Appellant’s claim does not take into account that there was a determination by a District Court Judge in the present case, prior to the action of the Court of General Sessions Judge, that the indictment charged statements sufficient to sustain a conviction under the statute. A General Sessions Judge acting on a minor charge cannot reverse a holding of the United States District Court — relating to the same issue. Appellant argues that the District Court order decided only that the words could support a conviction, depending upon the surrounding circumstances, whereas the General Sessions Judge made a factual determination considering those surrounding circumstances. The record, however, fails to support Appellant’s characterization of the decision of the General Sessions Judge.²³ He heard only the testimony of one witness who related, not the circumstances surrounding the statements by Appellant, but the events surrounding the subsequent arrest and the words that the witness had been told were spoken by Appellant. His decision, just as that of the District Judge, was concerned only with the legal issue of whether the words spoken were sufficient under the statute.

A further difficulty with the claim of collateral estoppel here is that no authority holds that rulings on unappealable pre-trial motions mattérs are proper subjects for collateral estoppel. The only cases located were contrary to Appellant’s position.²⁴ For example, in People v. Kissane, 347 Ill. 385, 179 N.E. 850 (1932), a defendant charged in a county court with the unauthorized possession of a pistol sought collateral estoppel from a municipal court’s suppression of the pistol in a prior case on the same charge. The Illinois Supreme Court held that the doctrine was not available because the decision was a “mere preliminary motion” and there had not been a trial, or even the entry of a plea by the defendant, in the prior case.

Affirmed.

1 . 18 U.S.C. § 871(a) (1964) provides:

(a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

2 . It is not disputed that this referred to President Johnson.

3 . The imposition of sentence was suspended and Appellant was placed on probation for four years.

4 . Before seeking to discover Congressional intent relating to an unambiguous statute, we would do well .to remember Justice Frankfurter’s incisive admonition .that when the legislative history is unclear, judges should turn back to the language of the statute.

5 . We see therefore that if the statute is directed at deterring the incitement of others to the prohibited action, to demand that the speaker “must willfully intend to do serious injury to the President” would defeat the effectiveness of the statute. We must ask ourselves whether Congress is impotent to prevent the reckless exhortations of a rabblerouser who urges a mob to storm the White House but has absolutely no intention of his own to kill the President. See the dissent’s evaluation that a conviction under § 871 cannot be sustained unless “the defendant made the statement with specific intent to execute it. * * * ” With this thrust of the dissenting opinion, we profoundly and explicitly disagree.

Nor can we agree with the assertion that: “What is clear is that Congressman Webb, the sponsor of the bill, insisted upon a specific intent to execute the threat.” Dissent at p. 687 n. 4. This analysis does not take sufficient cognizance of Congressman Webb’s previously noted concern for the incitement dangers inherent in uncontrolled threats. See discussion supra.

6 . The following colloquy ensued when some Congressmen were troubled by the possible conviction of a person who “intended” to make no threats.

Mr. Volstead. Mr. Speaker, I think it would be a mistake to strike out the word “willfully.” Suppose a person found a document containing a threat and sent it through the mail to a friend as a matter of news. He might knowingly send the document, not intending to convey any threat. The word “willfully” adds an intention to threaten, and distinguishes a case of that kind so as to take it out- of the category of criminal acts.

*****

Mr. Volstead. No; I did not say that. If the gentleman will read it with the word “willfully” stricken out, he will see that a person might send innocently, without any intention to convey a threat at all, an instrument to a friend that contained a threat, and he ■ would be guilty if you strike out the word “willfully.”

Mr. Volstead. The gentleman does not catch the point I have in mind. This statute does not require that the instrument shall be sent to the President. It might be sent to some other person. If, as the gentleman suggests, you strike out the word “toillfully,” a person who simply sends an instrument, say, a newspaper that contains such a threat to some friend to call his attention to the matter, would do so knowingly, and would come within the language of this hill.

53 Cong.Rec. 9379 (1916) (emphasis added).

7 . In fact, Congressman Raker felt that sending or conveying a known threat should be enough to allow conviction. It was to prevent conviction in these circumstances of one who did not “intend to threaten” that the word willfully was retained in the statute. See note 6 supra.

8 . Rothering v. United States, 384 F.2d 385 (10th Cir. 1967) (“appellant said that he wanted to go to jail; that he would do the same thing [rob] over again; that he would rob other people; and that ‘if they didn’t do any good “I will kill the President if it is necessary.” ’ ”) ; United States v. Stepp, 144 F.Supp. 826 (D.Colo.1956) (“President Eisenhower is a German [-], and if I ever get close enough to him I will kill him. I have a 30-30 bullet for him. If he walks across the street in front of me I would let him have it.”); Clark v. United States, 250 F. 449 (5th Cir. 1918) (“I wish Wilson was in hell, and if I had the power I would put him there.’’)

9 . United States v. Stickrath, 242 F. 151 (S.D.Ohio 1917) (“President Wilson ought to be killed. It is a wonder some one has not done it already. If I had an opportunity, I would do it myself.”)

10 . That the threat is conditioned upon a contingency subject to the maker’s control does not deprive it of the quality of a threat, if the contingency be a possible one. Every threat unexecuted involves some contingency, if none other than that the maker’s purpose be not abandoned, or that execution by him be not prevented.

United States v. Metzdorf, 252 F. 933, 938 (D.Mont.1918).

11 . Ragansky v. United States, 253 F. 643 (7th Cir. 1918) (“We ought to make the biggest bomb in the world and take it down to the White House and put it on the dome and blow up President Wilson and all the rest of the crooks.”); Clark v. United States, 250 F. 449 (5th Cir. 1918) (“I wish Wilson was in hell, and if I had the power I would put him there.”) ; cf. United States v. Stobo, 251 F. 689 (D.Del.1918) (“The President ought to be shot and I would like to be the one to do it.”) (Demurrer to indictment sustained for failure to aver that the oral threat was heard by anyone.)

12 . Pierce v. United States, 365 F.2d 292 (10th Cir. 1966); Ragansky v. United States, 253 F. 643 (7th Cir. 1918); cf. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

13 . See cases cited in notes 7-10, supra.

14 . Contrary to what Appellant claims, he was not prosecuted for his expression of views on Negroes and the Vietnamese war. He was free to challenge and attack the policies of the United States and actions of the President. See Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). Appellant was prosecuted for uttering a threat against the life of the President under a statute narrowly drawn to prevent such utterances.

15 . Congressman Webb made this observation:

[E]veryone admits that the Chief Executive of a great nation like ours ought to be protected in every way possible, especially in view of the sad experience we have had in losing by assassination three of our beloved Presidents.

* s{s * *

[A]n ounce of prevention is worth a pound of cure, and we want to prevent the threats which often incite men to kill and murder.

53 Cong.Rec. 9378 (1916).

16 . This distinction was clearly recognized by the drafters of section 871:

It is a crime to assault any person, but it is not a crime to assault the President any more than any other person. It is a crime against the person, but it ought to be a very different offense. Assaulting the President of the United States is quite a different matter from assaulting some private individual. That is the reason the gentleman’s bill has the provision against threats. There is a law now

covering the private individual, as far as these things are concerned, and the President to the same extent; but in this bill you are differentiating the office of President, and the man who fills the office, from any other citizen of the United States.

53 Cong.Rec. 9377 (1916).

17 . Few would claim that much of the editorial commentary that has been aimed at our Presidents fails to fulfill the sought for “uninhibited, robust, and wide-open” debate necessary to a democratic society. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Moreover, prohibiting the very limited “criticism” of threatening the life of the President seems to be a trivial limitation on the overall capacity to present effective political argument. Can it be thought that “robust debate” is inhibited by prohibiting threats on the very life of a President?

18 . Without entering the fashionable semantic debate, see dissent, pp. 690, 691 n. 11, on the vitality of “clear and present danger,” “balancing of interests,” or other labeled “tests” for determining First Amendment controversies, we conclude that the present regulation is valid within the strictures of any of these criteria.

19 . Whitney v. People of State of California, 274 U.S. 357, 377, 47 S.Ct. 641, 649, 71 D.Ed. 1095 (1927) (Brandéis, J., concurring) : “Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society.”

20 . That these utterances were made at a meeting focusing on dissatisfaction with police-community relations and police brutality, and were made within a few hundred yards of the White House, are not irrelevant factors; they could have weighed in the jury’s evaluation. Violence of extraordinary dimensions only recently was triggered in part by verbal incitement—again within a few hundred yards of the White House.

21 . Sealfon v. United States, 332 U.S. 575, .68 S.Ct. 237, 92 L.Ed. 180 (1948); United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916); Laughlin v. United States, 120 U.S.App. D.C. 93, 344 F.2d 187 (1965); United States v. Kramer, 289 F.2d 909 (2d Cir. 1961).

22 . The Government argues that the suppression order was not a final order because it was not appealable. DiBella v. United States. 369 U.S. 121, 130-131, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). But appealability is not the touchstone of a final order for these purposes. The most frequent type of order that leads to a claim of res judicata or collateral estoppel is a judgment of acquittal, see, e. g., cases cited in note 21, supra, and that is not subject to appeal by the Government. However, judgments of acquittal and even dismissals of cases have a degree of finality that is absent when, as here, the prior case is terminated by the Government’s nolle prosequi.

23 . In assessing what issues have been determined for the purposes of collateral estoppel, it is appropriate to examine the record to see what was raised before the judge in question. Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 92 L.Ed. 180 (1948).

24 . Tell v. Wolke, 21 Wis.2d 613, 124 N.W.2d 655 (1963) (prior discharge after jireliminary hearing is not res judicata as to subsequent prosecution on same charge); People v. Van Eyk, 56 Cal.2d 471, 15 Cal.Rptr. 150, 364 P.2d 326 (1961) (order in prior case setting aside information because of illegal seizure of evidence not res judicata in subsequent prosecution for related offense); People v. Prewitt, 52 Cal.2d 330, 340, 341 P.2d 1, 6 (1959) (prior dismissal of same charge on preliminary hearing because it was determined that the evidence was illegally seized was not res judicata or collateral estoppel on same issue in subsequent prosecution). See Vestal & Couglienour, Preclusion/Res Judicata Variables: Criminal Prosecutions, 19 Vand.L.Rev. 683, 692 (1966).

One reason for not according collateral estoppel consequences to rulings on pretrial motions of this nature is that frequently such action does not reflect full and careful determination of the issue. In the present case, for instance, the General Sessions Judge granted the Assistant United States Attorney only a short recess to locate the Assistant United States Attorney who had already convinced the District Court that the words were sufficient to constitute a violation of 18 U.S.C. § 871(a) (1964). When that Assistant could not be located at once, the General Sessions Judge gave short shrift to the prosecutor’s argument that the same issue had already been determined by the District Court and was not open to the Court of General Sessions.