By Kevin Francis O’Neill (Updated June 2017 by David L. Hudson Jr.)

In legal parlance a true threat is a statement that is meant to frighten or intimidate one or more specified persons into believing that they will be seriously harmed by the speaker or by someone

acting at the speaker’s behest. True threats constitute a category of speech — like obscenity, child pornography, fighting words, and the advocacy of imminent lawless action — that is not protected by the First Amendment. Although the other aforementioned categories have received specific definitions from the Supreme Court, the Court has mentioned the true threats category only in a handful of cases and has never fully developed a test to delineate its boundaries.

Circuit courts have several approaches to true threat cases

Left to their own devices, the federal circuit courts of appeal have created several approaches to their treatment of true threats cases. Among these is a particularly detailed and speech-protective test crafted by the U.S. Court of Appeals for the Second Circuit. The court stated in United States v. Kelner (2d Cir. 1976) that a true threat is a threat that “on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.” Until the Supreme Court formulates a definitive test for true threats, lawyers must invoke the test that prevails in their jurisdictions.

Virginia v. Black is most comprehensive Supreme Court definition true threats

The Supreme Court’s most comprehensive description of true threats on record is found in Virginia v. Black (2003), which ruled that Virginia’s ban on cross burning with intent to intimidate did not violate the First Amendment. The Supreme Court held that states may criminalize cross burning as long as the state statute clearly puts the burden on prosecutors to prove that the act was intended as a threat and not as a form of symbolic expression: “‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

The Watts factors help determine if a statement is a true threat

Courts have identified what have come to be known as “the Watts factors” in true-threat analysis: (1) the fact that the comments were made during a political debate; (2) the conditional nature of the threat; and (3) the reaction of the listeners, many of whom laughed when they heard Watts’ comments. 

True threats litigation is complicated by existing laws prohibiting threats

Watts serves as a reminder that true threats litigation is always complicated by statutory provisions that the court must construe and apply. There are many criminal statutes that prohibit threats. It is a crime, for example, under U.S. Code 18 to convey threatening communications through the U.S. mail system; to extort money through threats of violence or kidnapping; or to threaten a federal judge, the president, or a former president with kidnapping, assault or murder.

Sotomayor urged Court to re-evaluate true threat jurisprudence

First Amendment advocates hoped that the Supreme Court would clarify true-threats jurisprudence when it decided Elonis v. United

States (2015).  However, the Court in Elonis reversed the conviction based on faulty jury instructions without deciding the underlying First Amendment issues. 

In Perez v. Florida (2017), Justice Sonia Sotomayor urged the Court to re-evaluate its true threats jurisprudence in a future case with the proper procedural posture.  “States must prove more than the mere utterance of threatening words – some level of intent is required,” she wrote.  “The Court should also decide precisely what level of intent suffices under the First Amendment – a question we avoided two Terms ago in Elonis.”

Statutory and constitutional analysis are different in true threat cases

It is essential to distinguish between the court’s statutory analysis (construing the elements of the criminal statute) and its constitutional analysis (applying the true threats doctrine to the defendant’s statement). The prosecution must satisfy all the elements of the statute, but that is not the end of the analysis — at least where the defendant interposes a constitutional challenge. As a constitutional matter, the statute can criminalize only those threats that fall under the “true threats” definition that prevails within a given jurisdiction.

This article was originally published in 2009 and updated in 2017. Kevin Francis O’Neill is an associate professor at Cleveland-Marshall College of Law where he teaches First Amendment, Evidence, Civil Procedure, and Pretrial Practice. His scholarship focuses on the Speech Clause of the First Amendment. Prior to entering academia, Mr. O’Neill served as the Legal Director for the American Civil Liberties Union of Ohio where he focused special attention on First Amendment issues, reproductive freedom, police misconduct, and government mistreatment of the homeless.

cited https://mtsu.edu/first-amendment/article/1025/true-threats