Avery Smith is a 19-year-old college student at University of Northwest. She is majoring in art history. Avery paints in her free time and posts photos of her paintings online. She has a website and a Facebook page and she posts photos of her artwork in both places. Avery’s artwork is very violent and graphic. The subject matter of the paintings has included murder and various other crimes in a graphic nature. Her paintings have earned Avery the nickname “The Butcher” in the art world.

Sam is a business student at University of Northwest. He and Avery dated for three months. Sam decided to apply to graduate school in a different state and he broke off his relationship with Avery, telling her because he was going to move at the end of the year. Avery found out two weeks later that Sam really just wanted to date someone else. Avery posted new paintings of murder scenes featuring individuals that looked very much like Sam and his new girlfriend. The caption of the new artwork stated “people are going to get what’s coming to them.”

Sam’s new girlfriend is terrified and goes to the police. Avery is charged with violating U.S.C Section 875(c), which makes it a federal crime to transmit any communication containing a threat of injury to another person. Avery states that she never intended to threaten Sam or his new girlfriend. Her paintings are just a form of artistic expression, are not threatening and are constitutionally protected free speech.

Are Avery’s paintings protected free speech? Or should she be convicted of the charges against her? Why or why?

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