Perjury & False Statements

Juries and judges often base verdicts and other important decisions on sworn testimony and signed documents. If you’ve served on a jury, you’ve heard the court ask a witness taking the stand: “Do you swear or affirm that the statements you will make are the truth, the whole truth, and nothing but the truth?”

Statements given under oath and certain legal documents carry an expectation of truthfulness. But how can anyone know for sure that witnesses and other parties involved in a legal matter are telling the truth? It is not always possible to be certain. Yet, those who knowingly mislead a court may face serious criminal charges of perjury.

This article provides a general overview of the crime of perjury. It provides examples of and possible defenses to the offense. It also reviews federal and state perjury statutes.

What Is Perjury?

To “perjure oneself” is to make false statements under oath knowingly. Or it is to sign a legal document known to be false or to contain false statements. The false statement must also be related to a material fact. That is, it can affect the course or outcome of the proceeding.

The seriousness of perjury charges derives from its attack on the truth. The foundation of the legal system depends on trust and credibility. After all, one sworn statement has the power to tip the scales of justice and alter a person’s life.

Perjury qualifies as a crime against justice. Lying under oath compromises the work of an official proceeding. It challenges the authority of courts, grand juries, governing bodies, and public officials throughout government and the legal system. Other crimes against justice include criminal contempt of court, probation violation, and tampering with evidence.

Examples of Perjury

There are many ways a person could perjure themselves. In its simplest form, a person commits the crime either in statements made under oath or signed documents. Here are some examples:

• While completing a sworn affidavit during a bankruptcy court proceeding, John intentionally understates his monthly income by $2,000. John knows he has underreported the income. He signs the printed document and files it with the judge’s clerk.

• Mary is a suspect facing criminal charges. Jill is sworn in and testifies in the criminal case trial. She states that her friend, Mary, was having lunch at her house when the crime occurred. Credit card receipts and mobile phone records say otherwise. The alibi claim is central to Mary’s defense.

• Frank omits the $15,000 he won at a casino from his federal income tax return. It’s not a mistake. Frank intends to hide his winnings. He signs and sends the return to the IRS.

In all these examples, evidence of the crime of perjury comes to light when testimony or signed statements directly conflict with verifiable information. For example, authorities may investigate John’s conduct, which understated his monthly income in bankruptcy court. When his employer’s payroll records show a higher income, he may face perjury charges. The state will claim he provided false information on a sworn statement.

Since witnesses and others involved in legal proceedings may unintentionally provide false testimony in good faith, prosecutors must proceed with caution. They must be able to prove the intent to deceive or mislead. For example, a witness to a robbery testifies that the suspect had green eyes and a scar on his left cheek. Yet, other evidence points to a suspect with blue eyes and a scar on his right cheek. If the witness was not trying to protect the assailant by lying about key facts, she has not committed perjury. Her hazy memory of the incident should not become the basis of a criminal offense.

Federal and State Perjury Law and Penalties

Perjury cases can go forward in federal or state courts. As with all crimes, to obtain a conviction, the state must prove each and every element of the crime beyond a reasonable doubt.

Under federal law (18 USC § 1621), for example, the elements of the crime of perjury include:

1. Having taken an oath before any competent tribunal (court), officer, or person;
2. In any case where U.S. law authorizes an oath for truthful testimony, declaration, deposition, or certification;
3. Willfully and contrary to such oath;
4. States or subscribes to any material matter which they do not believe to be true

Federal law also outlaws the subornation of perjury, or the procuring of perjury by another person. The penalty for a federal perjury crime includes fines and imprisonment for up to five years. Judges have the discretion to use leniency (including probation instead of prison) when proper.

Most state laws have provisions that mirror federal law. The New York state penal code provides for various degrees of perjury crimes and criminal offenses for making apparently false statements. At the lower end, perjury in the third-degree is a class A misdemeanor offense. This crime involves making a false statement while giving testimony under oath or in a subscribed written instrument when under oath. The crime rises to a felony offense of perjury in the second degree when:

1. The statement is material;
2. Made in a subscribed written instrument; and
3. Made to mislead a public official in his official functions

The offense can become a felony charge of perjury in the first degree when the false statement is material and occurs during testimony.

Under law, perjury occurs when, in any official proceeding, a person knowingly makes a false statement while under oath or affirmation. The falsity must involve material statements. The statute also includes situations where someone knowingly swears or affirms a false statement made previously. The offense is a third-degree felony. Punishment can range from nine to 36 months in state prison and/or a fine of up to $10,000.

Ohio’s statute states that a person cannot claim they did not believe the false statement to be material. The law also applies even when there is a showing of some irregularity in the oath taken. If a person made two contradictory statements, the state does not have to prove which one is false. It must convince the jury that one of the statements is false. Yet, the state cannot obtain a perjury conviction only upon one testifying witness’s statement contradicting the defendant’s testimony.

Perjury is rarely charged, and it is difficult for prosecutors to prove. The threat of perjury charges is often a tool lawyers use to ensure that witnesses provide candid testimony to the court.

A conviction can cost someone their livelihood. Anyone who works in a profession where truthfulness is valued—such as the legal profession, law enforcement, and certain public service jobs—might face dismissal. Others who work in regulated industries might lose their professional licenses and see their careers come to an end.

Legal Defenses Associated With Perjury Cases

As the defendant’s intent is key to proving perjury, the state looks for strong evidence to corroborate an intent to mislead or provide false information. Legal defenses to perjury charges likewise seek to raise questions on the issue of intent. They may include any of the following:

• A belief that the statement was true even though the defendant was mistaken
• Evidence that the defendant misunderstood the question put to him
• Claims that the false statement did not address a material fact
• The defendant made a prompt recantation of the false statement

A defendant’s non-responsive answers will likely not support a perjury conviction. In a case where a business owner’s response to a question about his personal accounts provided a truthful (although non-responsive) statement about his business accounts, the U.S. Supreme Court stated that the perjury law should not be “loosely construed.” In Bronston v. U.S. (1973), the Court warned that “precise questioning is imperative as a predicate for the offense of perjury.” The Court overturned a jury’s conviction for perjury where the defendant provided a literally truthful statement about his company while not directly answering the question about his own accounts. source

These laws are permissible under the First Amendment if drafted in a way that meets the high bar set by the Supreme Court in a series of cases, starting with New York Times Co. v. Sullivan. 

Learn what the Supreme Court View and Decision reagarding threats is True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment and their decision to create a TRUE THREAT TEST Watts v. United States – True Threat Test – 1st Amendment

also hating an individual is not illegal Supreme Court unanimously reaffirms: There is “NO HATE SPEECH’ exception to the First Amendment

and literature that has words that may bother you, the lines of threats are drawn here Counterman v. Colorado – Supreme Court sets higher bar for prosecuting threats under First Amendment

Perjury & making false statements are serious federal felonies carrying up to 5 years in prison.

Before testifying under oath in any proceeding, or filing papers with government authorities, it is essential to understand the crimes of perjury and making false statements and their potential consequences.

Perjury, under 18 US Code Section 1621, can occur in many settings. It is more than lying under oath while testifying in court. It also includes lying at congressional hearings or in depositions in civil lawsuits. Sworn statements made to governmental agencies like the Internal Revenue Service or in financial affidavits (such as loan applications and tax filings) are also covered.

Suborning perjury applies when a person induces or causes another to commit perjury. (18 US Code Section 1622)

A closely related crime is making false statements under 18 US Code Section 1001. 

Title 18, United States Code, Section 1001 makes it a crime to:

1) knowingly and willfully;

2) make any materially false, fictitious, or fraudulent statement or representation;

3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.

The language of Section 1001 is very broad and applies in cases where a false statement does not meet all the requirements necessary for perjury. For example, perjury covers statements under oath. When a witness’ false statement was not under oath, 18 USC Section 1001 for making false statements to government agents may still apply.

In criminal cases, government investigators often talk to witnesses while out on the field. Lying to investigators during such a witness interview may not constitute perjury, but it can still be punishable as a crime for making false statements.

Like in any investigation, perjury and false statement cases present a range of potential outcomes. Sometimes, it may be possible to avoid formal criminal charges or prison altogether. Prison Professors, an Earning Freedom company, works alongside (not in place of) criminal defense attorneys to help clients proactively navigate through white-collar cases and prosecutions. It’s our experience that more well-informed and proactive clients obtain better outcomes. source

Can I Be Charged with False Statements for Lying in Civil Court?

Lying under oath in a civil court case can have serious consequences. While perjury charges are rare, making false statements in civil litigation can lead to various penalties. Understanding when lying crosses the line into illegal territory is crucial for any participant in a lawsuit. This article examines false statement laws and how they apply in civil court.

Perjury Laws

Perjury refers specifically to lying while under oath. The federal perjury statute, 18 U.S.C. § 1621, applies to statements made in federal court proceedings, including depositions. Most states have similar laws prohibiting perjury in state court cases.

To prove perjury, prosecutors must establish that the defendant:

• Knowingly made a false statement
• The statement was material to the case
• The defendant knew the statement was false when they made it

Merely being mistaken or forgetful is not enough to prove perjury. The government must show the defendant deliberately lied about something important to the case.

Perjury is a felony offense. If convicted in federal court, defendants face fines and up to 5 years in prison. State perjury laws carry similar penalties.

Lying in Civil Litigation

Civil suits do not lead to perjury charges as often as criminal cases. However, lying under oath in a civil case can still be illegal.

In civil litigation, depositions and trials rely heavily on testimony from parties and witnesses. Attorneys use this testimony to establish facts and make arguments. When a witness lies, it undermines the entire process.

While prosecutors rarely pursue perjury charges in civil cases, false statements can have other consequences. Opposing attorneys can seek sanctions through the court. Judges have discretion to penalize dishonest parties in various ways, such as:

• Dismissing claims or defenses
• Entering default judgment
• Paying the other side’s attorney fees
• Being held in contempt of court

Additionally, all witnesses in federal cases take an oath to tell the truth “under penalty of perjury.” 18 U.S.C. § 1621 applies to any false material statement made under oath, even in a civil case. So perjury charges are possible if a witness clearly lies about something significant.

Attorneys also have an ethical duty not to knowingly introduce false testimony. They can face professional discipline for suborning perjury.

What Constitutes a False Statement?

Merely being wrong does not necessarily make a statement false under the law. Civil litigation deals with complex factual issues. Witnesses can be honestly mistaken about events or details years after they occurred.

To face sanctions or criminal charges, the witness must knowingly lie about something material to the case. But what constitutes a “false statement” is not always clear cut.

Inaccurate or Misleading Testimony

Witnesses cannot get away with lies by using careful language. Even if their statements are technically true, intentionally misleading or deceptive testimony can be considered false.

For example, a defendant asked about his employment might truthfully state the name of his company. But omitting the fact that he owns the company could mislead the court about his income and assets. Even without directly lying, such intentional omissions could constitute false statements.

Opinions vs. Facts

Expressing opinions generally does not constitute lying under perjury laws. Witnesses may offer subjective viewpoints or interpretations of events. Exaggeration or embellishment is not necessarily illegal.

However, witnesses cannot disguise lies as opinions. Courts look at the context of the statement to determine if the witness deliberately falsified factual information.

Forgetfulness vs. Intentional Lies

Courts allow some leeway for honest mistakes. But witnesses cross a line when they intentionally lie about forgotten details.

If a witness cannot recall certain facts, they should say they do not remember rather than make up false details. Lying about forgotten facts suggests an intent to deceive the court.

Civil vs. Criminal Perjury

A common misconception holds that perjury requires proving intent to deceive “beyond a reasonable doubt,” as in criminal cases. However, civil litigation uses a “preponderance of the evidence” standard.

So in civil cases, judges and juries consider whether it is more likely than not that the witness lied intentionally. The evidence does not have to eliminate any possibility of innocence as it would in a criminal prosecution.

Defenses to Perjury

Defendants in perjury cases may argue they lacked the requisite intent to deceive the court. Some potential defenses include:

Lack of Materiality

The false statement must have been important to the case to constitute perjury. Immaterial lies generally do not have legal consequences.

Defendants may claim the false information did not affect any significant issues in the litigation. But courts often interpret materiality broadly. Any testimony influencing the fact-finder could be considered material.

Confusion or Mistake

As mentioned above, being mistaken is not illegal. Defendants may argue ambiguous questions or faulty memory caused inaccurate testimony.

However, claiming confusion or mistake is generally not a viable defense if there is evidence of intentional fabrication.

Mental State

A defendant’s mental state could negate the intent required for perjury. Evidence of mental illness or diminished capacity could undermine allegations of knowing deception.

However, the defendant must show they were unable to comprehend the nature of their false statements or the requirement to tell the truth.

Not Under Oath

Perjury applies only to statements made under oath or affirmation. That includes oral testimony at depositions and trials. It can also apply to affidavits and declarations signed under penalty of perjury.

Defendants may claim their allegedly false statements were not made under oath. But courts likely will not tolerate outright lies just because the witness had not been sworn in yet. source

Is Lying Protected by the First Amendment?

Is lying protected by the First Amendment? This question is at the center of our understanding of free speech and often a subject of our national conversations. 

Disinformation can erode trust in democratic institutions and harm national security, public health and our sense of community. But does that mean the government can — or should — punish falsehoods?  

Former President Trump was indicted on charges related to his claims about the 2020 election. He has raised the First Amendment free speech right to make these claims as protected political speech, which is at the heart of the First Amendment. Prosecutors are likely to respond that these claims are lies that are not protected by the First Amendment because his words themselves are criminal in nature, that they are evidence of fraud and conspiracy to commit fraud — going beyond words into actions. 

Does intentionally lying (as opposed to sincerely believing in some provably false statements) disqualify someone’s speech from First Amendment protection? Or is there some room under the First Amendment for lying to allow people to discuss political issues? 

Is lying protected by the First Amendment, or can the government punish lying?

So, is lying protected by the First Amendment? Short answer: Sometimes lies are not protected by the First Amendment. In other cases, they may be considered free speech.

When is lying protected by the First Amendment?

The First Amendment provides strong protection for speech, even in situations where a person is not telling the truth — intentionally or unintentionally.

People may often point to defamation as an example of when lying is not protected by the First Amendment. But the legal definition of defamation is narrow and hard to meet. It goes way beyond telling a lie about someone else.

Each state and the District of Columbia have laws defining defamation that allow anyone who feels they have been defamed to bring a civil lawsuit seeking compensation for damage to their reputation.

These laws are permissible under the First Amendment if drafted in a way that meets the high bar set by the Supreme Court in a series of cases, starting with New York Times Co. v. Sullivan. 

In that case, the court held that even false statements about public officials or figures are protected, as long as the speaker doesn’t know that they are false or take reckless disregard for their truth or falsehood. In addition to this “actual malice” standard, to be defamation, the lie in question must:

• Harm the subject’s reputation.
• Be “material or substantial” (not minor).
• Be a provable assertion of fact (not an opinion).
• Identify the person bringing the lawsuit.
• Be published, i.e., heard by someone other than the speaker and the subject of the statement.
• Cause actual economic damage.

The Supreme Court has also said that lying about your military service is protected. In the 2012 case of United States v. Alvarez, the court said that a federal law that criminalized lying about receiving military medals violated the First Amendment. Then-Justice Anthony Kennedy explained that in addition to identifying a specific — not general — harm from the speech, the government must demonstrate that the restriction is necessary to prevent that harm, and this law did not meet those standards.

Lying about the government is specifically protected.

In the Freedom Forum’s 2021 “Where America Stands” survey, 72% of approximately 3,000 respondents agreed that “Political ads that misrepresent the truth should be outlawed.”

But in New York Times Co. v. Sullivan, the court held that deliberate lies about the government are fully protected. That’s because the government can counter falsehoods about it with its own speech. And it’s likely that other members of the public will come to the government’s defense, either for outright political reasons or simply to ensure the stability of the country, which also continues an open conversation on matters of public concern.

When is lying not protected by the First Amendment?

Despite its strong protection for speech, the First Amendment does not provide absolute protection for everything you say. There are exceptions for some clearly defined “low value” categories of speech, some of which involve lying.

RELATED: What speech is protected by the First Amendment?

One example is committing fraud or false advertising. These unprotected lies induce others to misspend their hard-earned money.

Lying under oath during an official government proceeding, or perjury, is also not protected. These lies come after you have sworn to tell the truth in the sanctity of a courtroom or in filing a false report to police, like the hoaxes of actor Jussie Smollett and Carlee Russell, an Alabama woman who staged her own kidnapping. In these cases, decision-makers rely on your word to spend resources on investigations, determine guilt or innocence, make judgments or pass laws.

Plagiarism is effectively stealing someone’s creative (and perhaps commercial) expression and falsely claiming it as your own. It is not protected by the First Amendment.

Why is lying protected by the First Amendment in some cases?

It can be complex, but lying is not automatically excluded from First Amendment protection.

Shouting “Fire!” in a crowded theater is always trotted out as an example of why the First Amendment isn’t absolute. But the people who cite this are either lying or wrong when they use it. The actual quote comes from Justice Oliver Wendell Holmes who wrote, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”

There is a difference between protecting someone who shouts “Fire!” to avoid danger when there is a fire and punishing someone who falsely shouts that word to intentionally put people in danger when none exists. In the second example, the government restricts the lie to prevent injury. This is to ensure we avoid punishing any speech that may have value.

Yes, lies can have value. It is often difficult to decide truth versus falsity, especially in the moment. Theories that are later disproven can be — and often are — labeled as “lies.” But without the ability to challenge otherwise accepted viewpoints, our understanding of the world around us — and of ourselves — might never change. We have a right to learn and to get things wrong in the process.

Most important, if lies were always illegal, we would never be able to hold our government accountable — one of the key reasons the First Amendment is in the Bill of Rights. We force the government to tread lightly around protected speech so we can work things out for ourselves. The First Amendment envisions public discussion without government intervention unless and until a statement might cause direct harm to specific people that cannot be countered quickly through public debate.

The First Amendment demands patience before government intervention, “putting the brakes” on government determining the outcome of truth versus falsity. This is, as Justice William Brennan explained in New York Times Co. v. Sullivan, to provide the “breathing space” necessary for free speech to survive.

Simply put: The more people who are affected by a false statement, the more incentive and ability there is to counter it. When it’s left to the people to decide, the space between government participating in that debate and government declaring a winner of that debate remains as large as possible.

In Elonis v. United States 575 US __ (2015), Chief Justice John G. Roberts, Jr. was joined by six justices who reversed a trial court conviction, which had been upheld by the 3rd U.S. Circuit Court of Appeals. They decided that Anthony Douglas Elonis had been improperly convicted of transmitting threats through postings on Facebook.

Elonis posted lyrics that appeared to be threatening but had disclaimers

Elonis had posted rap lyrics under the name of “Tone Dougie” that appeared to threaten his ex-wife, an FBI agent, and even a kindergarten class.  However, he had included disclaimers indicating that his lyrics were “fictitious,” that they were “therapeutic,” that they emulated the lyrics of rap star Eminem, and that they were a proper exercise of Elonis’ First Amendment rights.

Trial court used ‘reasonable person’ standard to convict Elonis

At trial, Elonis requested the judge to instruct the jury that to convict him, the government must prove that he intended to convey a true threat. Instead, the court instructed jurors that they need only find that “a reasonable person” would interpret the words to constitute such a threat.

‘Reasonable person’ lowers standard for criminal conviction to negligence

Although the federal statute (18 USC Sec. 875 (c)) under which Elonis was convicted does not specify an individual’s requisite mental state, the Court has long insisted that “wrongdoing must be conscious to be criminal.” This is because criminal law has always insisted on actual blameworthiness as expressed in such terms as “mens rea, scienter, malice aforethought, guilty knowledge and the like.” A criminal defendant must “know the facts that make his conduct fit the definition of the offense.”

The reasonable person standard that the lower court employed effectively reduces the standard for a criminal conviction to that of negligence, which is more consistent with the standard for civil liability. Hamling v. United States (1974) established that individuals would not necessarily have to know whether materials they distributed were legally obscene to be convicted, but they would have to know “the character of what was sent.”

Although Elonis asserted that recklessness was not sufficient to show that he had uttered a true threat, neither he nor the government briefed this issue, and there were no conflicting circuit court opinions on the subject that the Court might review. The Supreme Court accordingly refused to decide whether a showing of recklessness would prove to be legally sufficient for such a criminal conviction.

Court overturned conviction

In a partial concurrence and a partial dissent, Justice Samuel Alito agreed that the Court appropriately sought to show that Elonis had mens rea but thought that an instruction requiring proof of recklessness would be sufficient to show this. Alito stressed that the First Amendment does not protect true threats, which “inflict great harm and have little if any social value.”

Despite Elonis’ reliance on professional performers who used similar lyrics, Alito observed that “’[t]aken in context,’ lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person.” Alito would accordingly remand the case to the court of appeals to decide “whether Elonis’ conviction could be upheld under a recklessness standard” and whether, alternatively, the instructions might be regardless as “harmless error.”

Dissenters pointed out that true threats are not protected by the First Amendment

In a dissenting opinion, Justice Clarence Thomas observed that nine of 11 circuits that had interpreted the statute had found that it required a showing of general intent. Thomas further thought that Elonis’s words met the objective standard for a true threat.

Elonis’ own belief about the legal status of his words is immaterial, Thomas said. Thomas denied that a showing of general intent is equivalent to a showing of mere negligence – “there is nothing absurd about punishing an individual who, with knowledge of the words he uses and their ordinary meaning in context, makes a threat.” 

Both English precedents and early state laws establish that freedom of speech has never included true threats, and “[w]e generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech.”  Thomas cited cases involving “fighting words” and cross burning. Elonis is just as guilty of issuing a true threat, Thomas said, as he would be had he mailed obscene materials to his wife or to the kindergarten class that he threatened.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

cited https://mtsu.edu/first-amendment/article/1455/elonis-v-united-states

Facts and Case Summary – Elonis v. U.S.

Facts

Anthony Elonis was arrested on December 8, 2010 and charged with five counts of violating a federal anti-threat statute, 18 U.S.C. § 875(c).  Specifically, he was charged with threatening his ex-wife, co-workers, a kindergarten class, the local police, and an FBI agent.

Elonis had posted statements on his Facebook page that appeared to threaten his ex-wife and other people in his life.  Prior to the postings, his wife and family had left him and he had lost his job at an amusement park. Shortly after this chain of events, Elonis posted several statements on his Facebook page that were interpreted as threats.

At his trial, Elonis asked the court to dismiss the charges, stating that his Facebook comments were not true threats.  He argued that he was an aspiring rap artist and that his comments were merely a form of artistic expression and a therapeutic release to help him deal with the events in his life.

In an apparent attempt to underscore that his comments should not be taken seriously, he posted links to YouTube videos that he parodied, and noted that a popular rap artist often uses similar language in his lyrics.  For several of his comments, he also posted a disclaimer stating: “This is not a threat.”

Despite the fact that his ex-wife, an FBI agent, and others viewing his comments might have perceived his statements as threats, Elonis argued that he could not be convicted of making a threat because he did not intend to threaten anyone with his postings. In other words, he claimed that he didn’t mean what he said in a literal sense. In legal terms, he said that he did not have a subjective intent to threaten anyone.

The trial court denied his motion to dismiss the case.  The court held that the proper legal test for determining whether someone made a threat is an objective one:  whether reasonable people hearing the comment would perceive it to be a threat.  Elonis was convicted of four of the five counts.  He was sentenced to 44 months imprisonment, and three years of supervised release.^[1]  He appealed to the U.S. Court of Appeals for the Third Circuit, which affirmed his conviction.  The U.S. Supreme Court, granted certiorari (agreed to hear the case).  Oral arguments were heard on Monday, December 1, 2014.  A decision is expected by June 2015.

^[1] Please Note:  After the trial, Elonis, through his lawyers, filed post-trial motions with the trial court in an attempt to overturn the conviction.  These attempts also were unsuccessful.

The First Amendment Provides That

“Congress shall make no law . . . abridging the freedom of speech [.]”

Applicable Law

It is a federal crime to “transmit [ ] in interstate or foreign commerce any communication containing…any threat to injure the person of another, 18 U.S.C. § 875(c).  Numerous states have adopted similar statutes.

Procedure

Lower Court 1:  U.S. District Court for the Eastern District of Pennsylvania

Lower Court Ruling 1:  The U.S. District Court rejected Elonis’ argument that a subjective (i.e., individual) intent to threaten is required to secure a conviction under the federal anti-threat statute.

Lower Court 2:  U.S. Court of Appeals for the Third Circuit

Lower Court Ruling 2:  The Court of Appeals affirmed the U.S. District Court.  It held that a reasonable person (i.e., objective) standard is the correct legal test for determining whether Elonis could be convicted of communicating a threat under federal law.

Issue Before the U.S. Supreme Court

Does a conviction of threatening another person under federal anti-threat statute18 U.S.C. § 875(c) require proof that the defendant meant what he said in a literal sense?

Status

Oral Arguments:  Heard at the Supreme Court of the United States on Monday, December 1, 2014.

Judgment

Reversed and remanded, 8-1, in an opinion by Chief Justice Roberts on June 1, 2015. Justice Alito filed an opinion concurring in part and dissenting in part. Justice Thomas filed a dissenting opinion.`

source

Elonis v. United States

Elonis v. United States, 575 U.S. 723 (2015), was a United States Supreme Court case concerning whether conviction of threatening another person over interstate lines (under 18 U.S.C. § 875(c)^[1]) requires proof of subjective intent to threaten or whether it is enough to show that a “reasonable person” would regard the statement as threatening.^[2] In controversy were the purported threats of violent rap lyrics written by Anthony Douglas Elonis and posted to Facebook under a pseudonym.^[3] The ACLU filed an amicus brief in support of the petitioner.^[2] It was the first time the Court has heard a case considering true threats and the limits of speech on social media.^[4]

Background[edit]

Elonis was in the process of divorce and made a number of public Facebook posts.

He “posted the script of a sketch” by The Whitest Kids U’ Know, which originally referenced saying “I want To kill the President of the United States” and replaced the president with his wife:

Did you know that it’s illegal for me to say I want to kill my wife?
It’s illegal.
It’s indirect criminal contempt.
It’s one of the only sentences that I’m not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife…
Um, but what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. . . .
But not illegal to say with a mortar launcher.
Because that’s its own sentence. . . .
I also found out that it’s incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room. . . .
Yet even more illegal to show an illustrated diagram. [Here Elonis posted an illustrated diagram]…

Elonis ended the post with this statement: “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”

A week later, Elonis posted about local law enforcement and a kindergarten class, which caught the attention of the Federal Bureau of Investigation. Then, he wrote a post on Facebook about one of the agents who visited him:

…Took all the strength I had not to turn the bitch ghost
Pull my knife, flick my wrist, and slit her throat

Leave her bleedin’ from her jugular in the arms of her partner…

He concluded:

And if you really believe this s***
I’ll have some bridge rubble to sell you tomorrow
[BOOM!][BOOM!][BOOM!]

The actions led to Elonis’s indictment by a grand jury on five counts of threats to park employees and visitors, local law enforcement, his estranged wife, an FBI agent, and a kindergarten class that had been relayed through interstate communication.

At the district court, Elonis moved to dismiss the indictment for failing to allege that he had intended to threaten anyone. His motion was denied. He requested a jury instruction that “the government must prove that he intended to communicate a true threat.” which was also denied. He was convicted on the last four of the five counts, and was sentenced to 44 months in prison and three years on supervised release. He appealed unsuccessfully to the Third Circuit, renewing his challenge to the jury instructions. He then appealed to the U.S. Supreme Court based on lack of any attempt to show intent to threaten and on First Amendment rights.^[3][4][5][6]

Decision[edit]

On June 1, 2015, the U.S. Supreme Court reversed Elonis’s conviction in an 8-1 decision. Chief Justice John Roberts wrote for a seven-justice majority, Samuel Alito authored an opinion concurring in part and dissenting in part, and Clarence Thomas authored a dissenting opinion. The finding of the circuit court was reversed and the matter remanded.

Majority opinion[edit]

The majority opinion, written by Roberts, did not rule on First Amendment matters or on the question of whether recklessness was sufficient mens rea to show intent. It ruled that mens rea was required to prove the commission of a crime under §875(c). Importantly, the mens rea issue had been preserved for review, since Elonis had raised that objection at every stage of the previous proceedings.

The government contended that the presence of the words “intent to extort” in §875(b) and §875(d) implied that the absence in §875(c) was constructive. The court disagreed, holding that the absence of the language in §875(c) was because the section was intended to have a broader scope than threats relating to extortion.

The opinion drew on many Supreme Court cases holding that in criminal law, mens rea was required though it had not been mentioned explicitly in statute. Consequently, the Supreme Court ruled in favor of Elonis.

Alito’s concurrence[edit]

Justice Samuel Alito, concurring in part and dissenting in part, opined that while agreeing that mens rea was required and specifically that showing negligence was not sufficient, the court should have ruled on the question of recklessness. He further opined that recklessness was sufficient to show a crime under that provision on the basis that going further would amount to amending the statute, rather than interpreting it. Since Elonis explicitly argued that recklessness was not sufficient, Alito said:

I would therefore remand for the Third Circuit to determine if Elonis’s failure (indeed, refusal) to argue for recklessness prevents reversal of his conviction.
The Third Circuit should also have the opportunity to consider whether the conviction could be upheld on harmless error grounds.

Alito also addressed the First Amendment question, elided by the majority opinion. He held that “lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person…. Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously.”

Thomas’s dissent[edit]

Justice Clarence Thomas, dissenting, wrote against discarding the “general intent” standard without replacing it with a clearer standard. Thomas argued that “there is no historical practice requiring more than general intent when a statute regulates speech.”

Thomas cited Rosen v. United States, arguing that general intent was sufficient in this case. However, the majority opinion offers refutation in that Rosen turned on ignorance of the law: knowledge as to whether material was legally obscene, not on whether it was intended to be obscene. Thomas also supported the government’s claim that the presence of “intent to extort” language in the adjacent §875(b) and did not address the majority’s reasoning on that language.

Thomas used precedent, notably from the states and 18th-century England based on other but similar and, arguably, influencing legislation to support his “general intent” claim. Thomas also drew a parallel with general intent in tort. While he sought to address the First Amendment issues, he never strayed far from “general intent.”

Aftermath[edit]

On remand, the Third Circuit reaffirmed the conviction “conclud[ing] beyond a reasonable doubt that Elonis would have been convicted if the jury had been properly instructed” and therefore was harmless error.^[7]

See also[edit]

• Rule of lenity
• Counterman v. Colorado

Footnotes[edit]

Maryland Law Review

With volume one dating back to 1936, the Maryland Law Review is the oldest journal at the University of Maryland Francis King Carey School of Law and the pre-eminent student authority on developments in Maryland case law in the State of Maryland

Maryland Law Review Volume 75 | Issue 4 Article 7
Elonis v. United States: The Need to Uphold Individual Rights to Free Speech While Protecting Victims of Online True Threats by Alison J. Best 

Which can be download in PDF Here

justices raising the bar for establishing when a statement is a “true threat” not protected by the 1st Amendment.

Holding: To establish that a statement is a “true threat” unprotected by the First Amendment, the state must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness.

Judgment: Vacated and remanded, 7-2, in an opinion by Justice Kagan on June 27, 2023. Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined as to Parts I, II, III-A, and III-B. Justice Thomas filed a dissenting opinion. Justice Barrett filed a dissenting opinion, in which Justice Thomas joined.

Washington — The Supreme Court on Tuesday sided with a Colorado man who was convicted of a crime after sending numerous threatening messages to a woman on Facebook, with the justices raising the bar for establishing when a statement is a “true threat” not protected by the First Amendment.

The high court divided 7-2 in the case of Counterman v. Colorado, with Justices Clarence Thomas and Amy Coney Barrett in dissent. The court wiped away a Colorado Court of Appeals’ ruling that upheld the conviction of Billy Counterman and sent the case back for further proceedings consistent with its opinion.

Writing for the majority, Justice Elena Kagan said prosecutors must demonstrate that a defendant who made a threat acted recklessly — that is, with the knowledge that others could regard their statement as threatening violence — to establish that the speech is a “true threat” and thus no longer covered by the First Amendment.

“The question presented is whether the First Amendment still requires proof that the defendant had some substantive understanding of the threatening nature of his statements,” she wrote. “We hold that it does, but that a mental state of recklessness is sufficient. The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

Counterman was prosecuted under a standard requiring the state to show only that a “reasonable person” would understand the messages as threats. The majority found that violated the First Amendment.

“[The state] did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment,” Kagan wrote.

In a dissenting opinion written by Barrett, which Thomas joined, the justice said the majority’s decision “unjustifiably grants true threat preferential treatment.”

“A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her,” Barrett wrote.

Counterman, she concluded, “communicated true threats” and caused the recipient of the messages, a singer-songwriter named Coles Whalen, to fear for her life.

“Nonetheless, the court concludes that Counterman can prevail on a First Amendment defense,” Barrett said. “Nothing in the Constitution compels this result.”

The case arose from hundreds of Facebook messages Counterman sent to Whalen between 2014 and 2016. Some of the messages were innocuous, while others were more troubling. Whalen tried to block Counterman, but he created multiple accounts to continue sending them. 

In one, Counterman wrote, “F**k off permanently,” while in another, he wrote, “I’ve tapped phone lines before. What do you fear?” According to court filings, a third read, “You’re not being good for human relations. Die. Don’t need you.”

Whalen believed Counterman’s messages were threatening her life and she was worried she would get hurt. She had issues sleeping, suffered from anxiety, stopped walking alone and even turned down performances out of fear that Counterman was following her.

She eventually turned to the authorities and obtained a protective order, after which Colorado law enforcement arrested Counterman and charged him with stalking under a Colorado law that prohibits “repeatedly making any form of communication with another person” in a manner that would “cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.”

Conviction under the law requires proof that the speaker “knowingly” made repeated communications, and does not require the person to be aware that the acts would cause “a reasonable person to suffer serious emotional distress.”

Before his trial, Counterman sought to dismiss the charge, arguing that his messages were not “true threats” and therefore protected speech under the First Amendment. But the state trial court found that his messages reached the level of a true threat, and the First Amendment did not preclude his prosecution. A jury then found Counterman guilty, and he was sentenced to four-and-a-half years in prison.

Counterman appealed, arguing the trial court erred when it applied an objective standard for determining whether his messages constituted true threats. He said the court should instead adopt a “subjective intent” requirement, which required the state to show he was aware of the threatening nature of his communications.

But the Colorado Court of Appeals upheld his conviction and agreed with the trial court’s finding that Counterman’s Facebook messages were “true threats” and not protected by the First Amendment. The state supreme court declined to review the case.

The ACLU, which filed a brief in support of Counterman, cheered the decision, saying in a statement that the high court affirmed that “inadvertently threatening speech cannot be criminalized.”

“In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received,” said Brian Hauss, senior staff attorney with the organization’s Speech, Privacy, & Technology Project. “The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

ACLU Commends Supreme Court Decision to Protect Free Speech in Case Defining True Threats

In Counterman v. Colorado, the court ruled that the First Amendment requires the government to show recklessness in true threats prosecutions.

WASHINGTON – The Supreme Court ruled today in Counterman v. Colorado that in true threats cases the First Amendment requires the government to prove that the defendant acted with a culpable mental state, and not merely that his words were objectively threatening.

Colorado law allowed individuals to be convicted if a reasonable person would perceive their words as threatening, regardless of the speaker’s intent. Today’s decision rules that the First Amendment requires the government to show at a minimum that the defendant recklessly disregarded a substantial risk that his words could be perceived as threatening. The court holds that a recklessness standard strikes the right balance between free expression and safety, “offering ‘enough “breathing space” for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats.”

“We’re glad the Supreme Court affirmed today that inadvertently threatening speech cannot be criminalized,” said Brian Hauss, senior staff attorney with the American Civil Liberties Union’s Speech, Privacy, & Technology Project. “In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received. The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

This case involved a series of disturbing messages that the petitioner, Billy Raymond Counterman, sent to C.W., a professional musician in Colorado, over a two-year period. Counterman was prosecuted and convicted under Colorado’s anti-stalking statute. On appeal, Counterman — who has been diagnosed with a mental illness — argued that his conviction was unconstitutional because the jury was not required to find that he intended to threaten C.W.

The ACLU and its partners filed an amicus brief in the case arguing that a great deal of speech — including political speech, satire, and artistic speech — contains overt or implicit references to violence that could be interpreted as threatening. Without requiring some element of intentional wrongdoing, the ACLU argued, there exists a significant risk that people will be convicted of serious felonies because they failed to adequately anticipate how their words would be perceived.

Counterman v. Colorado is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket. The amicus brief was filed with the ACLU of Colorado, the Abrams Institute for Freedom of Expression, the National Association of Criminal Defense Lawyers, and the National Coalition Against Censorship.

Supreme Court Decides Counterman v. Colorado

On June 27, 2023, the U.S. Supreme Court decided Counterman v. Colorado, No. 22-138, holding that a criminal prosecution based on a true threat of violence requires proof that the defendant subjectively understood the threatening character of the statement such that making the statement was at least reckless.

Between 2014 and 2016, Billy Counterman persistently sent hundreds of unwelcome messages through Facebook to a local musician, creating new accounts to circumvent her attempts to block them. The musician interpreted many of the messages as indicators that Counterman was surveilling her and intended to harm her. Colorado state prosecutors criminally charged Counterman for his behavior, and the Facebook messages themselves were the only evidence presented at trial. Counterman claimed his messages fell within the protections of the First Amendment because they could not be “true threats” if he did not have a subjective understanding that the messages were threatening. The Colorado trial and appellate courts rejected his argument and ruled that “true threats” were subject only to an objective reasonableness standard.

The Supreme Court reversed. While the Court agreed that “true threats of violence” are not protected speech under the First Amendment, the Court held that a court must apply a subjective test to determine if a statement is in fact a true threat of violence. The Court held that this subjective standard is required to avoid a chilling effect on otherwise protected speech. The Court noted that the “ordinary citizen’s predictable tendency” is to steer very wide of speech that may be considered unlawful. The Court held that a subjective standard was necessary to balance the public interest in avoiding unnecessary chilling of lawful speech and the ability of prosecutors to criminally charge defendants for unlawful speech.

The Court then analyzed what level of subjective knowledge is sufficient to accomplish that balance. The Court compared the law governing other non-protected classes of speech, including defamation, and determined that a reckless state of mind is sufficient—i.e., a defendant who consciously disregards a substantial risk that statements would be understood as a true threat may be prosecuted. The Court also concluded that any mens rea requirement higher than recklessness—like purpose or knowledge—would make prosecution too difficult, and “with diminishing returns for protected expression.” To balance the risk of chilling public speech and the need to be able to prosecute true threats of violence, the Court ruled that prosecutors must prove that defendants recklessly made threatening statements.

Justice Kagan authored the opinion of the Court. Justice Sotomayor authored a concurrence in which Justice Gorsuch joined in part. Justice Thomas authored a dissent. Justice Barrett authored a dissent in which Justice Thomas joined.

This Report summarizes an opinion issued on January 23 (Part I); and cases granted review on December 27, 2022, and January 13, 2023 (Part II).

Opinion: Counterman v. Colorado, 22-138

Counterman v. Colorado, 22-138. The Court will clarify the standard for determining whether a statement is a true threat unprotected by the First Amendment. Most federal courts of appeals apply an objective test that asks whether a reasonable person would interpret the statement as a threat of violence. By contrast, the Ninth and Tenth Circuits employ a subjective test that asks whether the speaker intended the recipient to feel threatened. State courts are similarly divided, with some applying a hybrid test that considers both the speaker’s subjective intent and whether a reasonable person would view the statement as a threat. This is the second time that the Court has agreed to address this split. The issue was presented in Elonis v. United States, 575 U.S. 723 (2015), but the Court ultimately resolved that case on a different basis.

The issue here arises in the context of a criminal prosecution for stalking. Over the course of two years, petitioner Billy Raymond Counterman directly messaged a local musician on Facebook without invitation or response. Some of the messages suggested that he was physically surveilling her, while others told her to “Die” and “Fuck off permanently.” Counterman’s messages caused the victim to fear for her safety, so she told her family and police. Relying on 17 messages, Colorado charged him with stalking. Under Colorado law, prosecutors did not need to prove that Counterman intended his statements to be threatening or that he was aware that they could be interpreted that way. Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not true threats and thus were protected speech. The trial court denied the motion and a jury found Counterman guilty of stalking. The Colorado Court of Appeals affirmed Counterman’s conviction. 497 P.3d 1039. In holding that Counterman’s statements were true threats subject to criminal prosecution, the Colorado Court of Appeals applied the objective test that asks whether a reasonable person would view the statements as threatening. The court of appeals rejected Counterman’s argument that a speaker’s subjective intent to threaten is necessary for a statement to constitute a true threat, noting that the Colorado Supreme Court recently rejected that rule absent further guidance from the U.S. Supreme Court. The Colorado Supreme Court later denied Counterman’s petition for review.

Relying on history, tradition, and U.S. Supreme Court precedent, Counterman argues in his petition that “heightened scienter is necessary to true threats.” He notes that, generally, consciousness of wrongdoing is required for a criminal conviction. A scienter requirement is especially important for a statute that regulates speech, Counterman contends, because convicting “a person for negligently misjudging how others would construe the speaker’s words would erode the breathing space that safeguards the free exchange of ideas.” Counterman submits that a purely objective test for true threats conflicts with the Court’s true threats jurisprudence, including Virginia v. Black, 538 U.S. 343 (2003). There, the Court stated that 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.” (Emphasis added.) Counterman relies on this language to argue that the Court has already imposed a heightened scienter requirement for true threats. He also points out that in incitement cases, the Court has required proof that the speaker intended to produce imminent disorder. See Hess v. Indiana, 414 U.S. 105, 109 (1973) (per curiam).

Colorado argues that its objective test for true threats is consistent with the Court’s free speech jurisprudence. It compares its “context-driven objective standard” to the Court’s analysis in Watts v. United States, 394 U.S. 705 (1969). There, in holding that the speaker’s comments at a rally were not true threats subject to criminal prosecution, the Court focused on the plain language of the statements, the context in which they were made, and the listeners’ reaction. Colorado’s test similarly examines “the contested expression’s context, including the listeners’ reaction.” In Colorado’s view, the Court in Black did not subsequently adopt a subjective-intent requirement for true threats. It reads Black as simply identifying one circumstance where a speaker makes a true threat, namely when he communicates with the intent to threaten the recipient. Colorado maintains that Black did not “state that true threats were limited to such statements.” Colorado also contends that an objective test is especially important to protect victims of stalking because stalkers may be delusional, thereby making it difficult for prosecutors to prove a subjective intent to threaten. And because its objective test considers the context in which the statements were made, Colorado submits that speakers will be protected from unfair punishment.

US Supreme Court makes decision on Counterman v. Colorado

WASHINGTON, D.C., USA — The Supreme Court ruled Tuesday to make it more difficult to convict a person of making a violent threat, including against the president or other elected officials.

The Biden administration had warned that the internet and social media have expanded the number and kinds of threats in recent years, including online harassment, intimidation and stalking. And they warned the case could affect the ability to prosecute threats against public officials, which have increased in recent years.

The high court was ruling in a case that involves a man who was sentenced to more than four years in prison in Colorado for sending threatening Facebook messages. The man’s lawyers had argued that he suffers from mental illness and never intended his messages to be threatening.

The question for the court was whether prosecutors must show that a person being prosecuted for making a threat knew their behavior was threatening or whether prosecutors just have to prove that a reasonable person would see it as threatening.

Justice Elena Kagan wrote for a majority of the court that prosecutors have to show that “the defendant had some subjective understanding of the threatening nature of his statements.”

“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” she said.

Seven justices agreed with the outcome. Two conservative justices, Clarence Thomas and Amy Coney Barrett, dissented.

The Biden administration had been among those arguing for the lower “reasonable person” standard.

“Threats of violence against public officials in particular have proliferated in recent years, including threats against Members of Congress, judges, local officials, and election workers,” the Biden administration had noted, saying the case could affect prosecutions in those cases.

Speech of all kinds is generally protected by the free speech clause in the Constitution’s First Amendment, but so-called “true threats” are an exception.

The specific case before the justices involved Billy Counterman. He contacted a musician through Facebook in 2010 to ask her whether she would perform in a benefit concert he said he was organizing. The woman, Coles Whalen, responded but nothing ever came of it.

Whalen forgot about the exchange, but four years later, Counterman began sending her Facebook messages again. He ultimately sent hundreds of messages, including ones that were rambling and delusional and others that were quotes and memes. Whalen never responded and blocked Counterman several times, but he would just create a new account and continue sending messages.

Counterman believed Whalen was responding through other websites and Facebook pages. Whalen became concerned after Counterman’s messages — including “You’re not being good for human relations. Die. Don’t need you.” and “Was that you in the white Jeep?” — suggested he was following her in person. Eventually, the messages were reported to law enforcement and Counterman was arrested. He was convicted and lost an appeal.

The justices’ ruling is a victory for Counterman and sends his case back to lower courts for another look. In a statement, his attorney John Elwood said that they are “gratified that the Supreme Court agreed with Billy Counterman that the First Amendment requires proof of mental state before it can imprison a person for statements that are perceived as threatening.”

Colorado Attorney General Phil Weiser, whose office prosecuted Counterman, said in a statement that the decision will make it “more difficult to stop stalkers from tormenting their victims.”

“In today’s ruling, the Court creates a loophole for delusional and devious stalkers and misapprehends the very nature of threats faced by stalking victims,” Weiser said. “In short, this decision will make it more likely that victims of threats— mostly women — will live in fear and will be discouraged from speaking out against their stalkers, believing there is little they can do to hold those stalkers accountable.”

The case is Counterman v. Colorado, 22-138.

Opinion of the Court Counterman v. Colorado

source 1  source 2  source 3  source 4 source 5 source 6 source 7

In 1969, the U.S. Supreme Court made history by ruling that, to merit conviction, the violence advocated must be intended, likely and imminent. By Jeff Howard.

The case

Clarence Brandenburg, a 48 year-old television repair shop owner and leader of the Ku Klux Klan’s Ohio branch, held a rally in the summer of 1964 to articulate and celebrate his white supremacist ideology. Brandenburg proclaimed in front of local TV cameras: “if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance [sic] taken.” Indicating an impending Independence Day march on Washington, DC, the speech included such statements as, “the nigger should be returned to Africa, the Jew returned to Israel.” While Brandenburg was not evidently armed, other Klansmen at the rally were.

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Brandenburg was found guilty of violating Ohio state law, which prohibited “advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” His penalties included a $1,000 fine and a 1-10 year prison sentence.

In a landmark judgment, the U.S. Supreme Court overturned the conviction, contending that the Ohio law affronted Brandenburg’s freedom of speech, protected by the First Amendment of the U.S. Constitution. Instead, the Court held: “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Because the rally was not obviously intended to incite specific acts of violence, and because it was not likely to do so, government restriction of Brandenburg’s speech was unconstitutional.

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

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.

Actual malice is the legal standard established by the Supreme Court for libel cases to determine when public officials or public figures may

recover damages in lawsuits against the news media.

Public officials cannot win libel cases without proof of actual malice

Beginning with the unanimous decision in New York Times Co. v. Sullivan (1964), the Supreme Court has held that public officials cannot recover damages for libel without proving that a statement was made with actual malice — defined as “with knowledge that it was false or with reckless disregard of whether it was false or not.”

The decision in Sullivan threw out a damage award against the New York Times, but only six of the nine justices fully agreed with Justice William J. Brennan Jr.’s use of the actual malice standard, which he derived from a Kansas Supreme Court ruling, Coleman v. MacLennan (Kan. 1908). Justices Hugo L. Black and Arthur J. Goldberg, joined by Justice William O. Douglas, thought the Court should go farther to protect criticism of public officials and debate about public affairs.

Public figures, officials bear burden of proving actual malice

In subsequent cases, the Supreme Court elaborated on the actual malice test in the libel context. In St. Amant v. Thompson (1968), the Court recognized the standard as a subjective one, requiring proof that the defendant actually had doubts about the truth or falsity of a story. It extended the application of the actual malice test to public figures, not just public officials, in Curtis Publishing Co. v. Butts (1967).

Under the actual malice standard, if the individual who sues is a public official or public figure, that individual bears the burden of proving that the media defendant acted with actual malice. The amount of proof must be “clear and convincing evidence,” and the standard applies to compensatory as well as to punitive damages.

Actual malice not required for private figures

Concerning private figures, however, the Court ruled in Gertz v. Robert Welch, Inc. (1974) that actual malice is not required for recovery of compensatory damages, but is the standard for punitive damages.

Court has used actual malice test to give news First Amendment protection

The Supreme Court has expanded the reach of the First Amendment to afford the news media protection against other types of lawsuits designed to protect individual privacy, including those alleging intentional infliction of emotional distress, as in Hustler Magazine v. Falwell (1988); disclosure of private facts, as per Florida Star v. B.J.F. (1989); and depicting someone in a false light, as in Time Inc. v. Hill (1967). In all of these cases, the Court applied the same actual malice test to further recognize the principle of free and open comment in a democratic society.

The actual malice standard has at times drawn criticism from people in the public eye who think the test makes it too hard for them to restore their reputations and from the news media, which has complained that the standard does not afford enough protection for freedom of speech.

In July 2021, justices Clarence Thomas and Neil Gorsuch wrote separate dissenting opinions to a denial of certiorari in the defamation case Berisha v. Lawson, saying that the actual malice standard needed review. Gorsuch argued that the media landscape had changed dramatically since the New York Times decision.

This article was originally published in 2009 and has been updated by encyclopedia staff as recently as July 2021.  Stephen Wermiel is a professor of practice at American University Washington College of Law, where he teaches constitutional law, First Amendment and a seminar on the workings of the Supreme Court. He writes a periodic column on SCOTUSblog aimed at explaining the Supreme Court to law students. He is co-author of Justice Brennan: Liberal Champion (Houghton Mifflin Harcourt, 2010) and The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (ABA Publishing, 2014).

Court had said private figures had to show actual malice in matters of public interest

In addition to the standard set for public officials in Sullivan, the Court stated in Curtis Publishing Co. v. Butts (1967) that this burden of proof would also have to be met by public figures if they too wished to prevail in these types of suits. These cases left unresolved, however, what the First Amendment required concerning criticism of private individuals.

In Rosenbloom v. Metromedia, Inc. (1971), a plurality of the Supreme Court appeared to extend the Sullivan standard to private individuals if the matter involved discussion of public interest. This was the issue again addressed in Gertz.

cited https://mtsu.edu/first-amendment/article/889/actual-malice

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Free Speech – 1st Amendment – Emails

Brief Fact Summary. The Defendant, Abraham Jacob Alkhabaz, a.k.a. Jake Baker (Defendant), posted a story on a Usenet news group, “alt.sex.stories,” detailing the torture, rape, and murder of a young woman possessing the same name as one of the Defendant’s classmates at the University of Michigan.

Synopsis of Rule of Law. A “communication containing a threat” must be such that a reasonable person (1) would view the communication as expressing the intent to inflict bodily harm and (2) would view the communication as an attempt to effect change or achieve some goal through intimidation.

FACTS:

Defendant and another person exchanged e-mails, the content of which expressed a sexual interest in violence against women and girls. Defendant posted a fictional story on an interactive news group describing the torture, rape, and murder of a young woman who shared the name of one of defendant’s college classmates. Defendant was indicted on charges that he violated 18 U.S.C.S. § 875(c), which prohibited interstate communications containing threats to kidnap or injure another person. Defendant was subsequently indicted on a superseding indictment based on several e-mail messages between defendant and his e-mail friend. The district court dismissed the indictment, reasoning that the e-mail messages sent and received by defendant and his e-mail friend did not constitute “true threats” under the First Amendment, and, as such, were protected speech. The government appealed, arguing that the district court erred in dismissing the indictment because the communications constituted “true threats” and, as such, did not implicate First Amendment free speech protections.

ISSUE:

Did the e-mail messages constitute communications containing a threat under § 875(c), thereby not implicating First Amendment free speech protections? 

Held.

No. Under federal law, it is illegal to transmit in interstate commerce a communication containing a threat to injure or kidnap another person. The government was able to easily prove that the story was transmitted in interstate commerce and the threat-if it were a threat-was to injure or kidnap another person. The difficulty is in defining a communication containing a threat. The Sixth Circuit Court of Appeals opined that a “communication containing a threat” must be such that a reasonable person (1) would view the communication as expressing the intent to inflict bodily harm, and (2) would view the communication as an attempt to effect change or achieve some goal through intimidation. Under this definition, the Defendant’s story did not constitute a threat, as it was not directed to the young woman whose name he used.

Dissent. A “threat” does not have to be directed at someone, but rather, the communication would lead a reasonable, objective recipient to believe that the writer was serious about the threat.

Discussion. A threat must lead a reasonable person to believe that the person making the threat seriously intends to carry it out and said threat serves some purpose, i.e. to effect change or achieve some goal.

CONCLUSION:

On appeal, the court affirmed the dismissal of the indictment. The court held that the e-mail messages did not constitute communications containing a threat under § 875(c), because no reasonable person would perceive such communications as being conveyed to effect some change or achieve some goal through intimidation. The court held that the e-mails were sent in an attempt to foster a friendship based on shared sexual fantasies.

cited https://www.lexisnexis.com/community/casebrief/p/casebrief-united-states-v-alkhabaz
cited https://www.casebriefs.com/blog/law/criminal-law/criminal-law-keyed-to-dressler/inchoate-offenses/united-states-v-alkhabaz/

California Penal Code 76 PC prohibits making death threats to public officials with the apparent ability to carry out the threat. A first-time offense of threatening public officials can be a felony or a misdemeanor carrying incarceration and/or up to $5,000 in fines.

The full text of the statute reads as follows:

76.  (a) Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, or the staff, immediate family, or immediate family of the staff of any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense, punishable as follows:
(1) Upon a first conviction, the offense is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both that fine and imprisonment.
(2) If the person has been convicted previously of violating this section, the previous conviction shall be charged in the accusatory pleading, and if the previous conviction is found to be true by the jury upon a jury trial, or by the court upon a court trial, or is admitted by the defendant, the offense is punishable by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Any law enforcement agency that has knowledge of a violation of this section involving a constitutional officer of the state, a Member of the Legislature, or a member of the judiciary shall immediately report that information to the Department of the California Highway Patrol.

(c) For purposes of this section, the following definitions shall apply:
(1) “Apparent ability to carry out that threat” includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date.
(2) “Serious bodily harm” includes serious physical injury or serious traumatic condition.
(3) “Immediate family” means a spouse, parent, or child, or anyone who has regularly resided in the household for the past six months.
(4) “Staff of a judge” means court officers and employees, including commissioners, referees, and retired judges sitting on assignment.
(5) “Threat” means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.

(d) As for threats against staff or immediate family of staff, the threat must relate directly to the official duties of the staff of the elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(e) A threat must relate directly to the official duties of a Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

Legal Analysis

California Penal Code 76 PC makes it a public offense to knowingly and willingly threaten serious bodily injury or death to:

• an elected public official;
• a county public defender;
• a county clerk;
• an exempt appointee of the Governor;
• a judge;
• the Deputy Commissioner of the Board of Prison Terms; and/or
• the staff, immediate family, or immediate family of the staff of anyone listed above.

In addition, the defendant must have:

1. the specific intent that their statement(s) be taken as a threat, and
2. the apparent ability to carry out the threats.

Example: Jed is angry that a Los Angeles judge just sentenced his friend to prison. In retaliation, Jed posts a YouTube video holding a gun and telling the judge that he is going to kill him.

Here, Jed could probably be convicted of violating PC 76 because the gun shows his ability to carry out his threat.

A first-time conviction of threatening a public official in California is a wobbler. If prosecuted as a misdemeanor, violating PC 76 carries:

• up to 1 year in county jail; and/or
• up to $5,000 in fines.

If prosecuted as a felony, violating PC 76 carries up to $5,000 in fines and/or:

• 16 months in county jail;
• 2 years in county jail; or
• 3 years in county jail.

Meanwhile, a subsequent conviction of threatening a public official is always a felony carrying up to $5,000 in fines and/or:

• 16 months in county jail;
• 2 years in county jail; or
• 3 years in county jail.¹

Legal References