John Doe, the owner of a milk container manufacturing firm, sought to focus public attention on the milk packaging law of the State of Clinton in order to have it repealed. On a weekday at 12 noon, he delivered an excited, animated, and loud harangue on the steps of the State Capitol in front of the main entryway. An audience of 200 onlookers, who gathered on the steps, heckled him and laughed as he delivered his tirade. Doe repeatedly stated, gesturing expressively and making faces, that "the g ddamned milk packaging law is stupid," and that "I will strangle every one of those g ddamned legislators I can get hold of because this law they created proves they are all too dumb to live." After about 15 minutes, Doe stopped speaking, and the amused crowd dispersed. There are three relevant statutes of the State of Clinton. The first statute prohibits "all speech making, picketing, and public gatherings of every sort on the Capitol steps in front of the main entryway during the hours of 7:45 a.m. 8:15 a.m., 11:45 a.m. 12:15 p.m., 12:45 p.m. 1:15 p.m., and 4:45 p.m. 5:15 p.m. on Capitol working days.""A second state statute punishes "any person who shall intentionally threaten the life or safety of any public official for any act which he performed as part of his public office." Which of the following statements is correct concerning the possible punishment of Doe under the second statute?
The statute is unconstitutional on its face. The statute is constitutional on its face, but Doe could not constitutionally be punished under it for this speech.  Doe could constitutionally be punished under the statute for his speech. Doe could constitutionally be punished under the statute for his speech, but only if one or more legislators were actually present when he delivered it