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.