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An anti-Vietnam War protester, Robert Watts, was prosecuted and convicted for threatening President Lyndon B. Johnson after he said at an anti-war rally, "If they ever make me carry a rifle, the first man I want to get in my sights in L.B.J." The case went to the Supreme Court, which said that Watts' remark was the sort of "political hyperbole" that did not constitute a true threat, and ruled the statute that criminalized threats against the president as unconstitutional on its face. Later, courts used the "Watts factors" in true-threat analysis, considering the context of the threat, the conditional nature and reaction of the listeners. The Watts case came during a time of multiple marches and protests against the war, as the one shown here in Washington D.C. in October 1967 where a sign reads "GET THE HELLicopters OUT OF VIETNAM." (Photo, public domain via Wikimedia Commons)An anti-Vietnam War protester, Robert Watts, was prosecuted and convicted for threatening President Lyndon B. Johnson after he said at an anti-war rally, "If they ever make me carry a rifle, the first man I want to get in my sights in L.B.J." The case went to the Supreme Court, which said that Watts' remark was the sort of "political hyperbole" that did not constitute a true threat, and ruled the statute that criminalized threats against the president as unconstitutional on its face. Later, courts used the "Watts factors" in true-threat analysis, considering the context of the threat, the conditional nature and reaction of the listeners. The Watts case came during a time of multiple marches and protests against the war, as the one shown here in Washington D.C. in October 1967 where a sign reads "GET THE HELLicopters OUT OF VIETNAM." (Photo, public domain via Wikimedia Commons)

True Threats – Virginia v. Black is most comprehensive Supreme Court definition

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

An anti-Vietnam War protester, Robert Watts, was prosecuted and convicted for threatening President Lyndon B. Johnson after he said at an anti-war rally, "If they ever make me carry a rifle, the first man I want to get in my sights in L.B.J." The case went to the Supreme Court, which said that Watts' remark was the sort of "political hyperbole" that did not constitute a true threat, and ruled the statute that criminalized threats against the president as unconstitutional on its face. Later, courts used the "Watts factors" in true-threat analysis, considering the context of the threat, the conditional nature and reaction of the listeners. The Watts case came during a time of multiple marches and protests against the war, as the one shown here in Washington D.C. in October 1967 where a sign reads "GET THE HELLicopters OUT OF VIETNAM." (Photo, public domain via Wikimedia Commons)
An anti-Vietnam War protester, Robert Watts, was prosecuted and convicted for threatening President Lyndon B. Johnson after he said at an anti-war rally, “If they ever make me carry a rifle, the first man I want to get in my sights in L.B.J.” The case went to the Supreme Court, which said that Watts’ remark was the sort of “political hyperbole” that did not constitute a true threat, and ruled the statute that criminalized threats against the president as unconstitutional on its face. Later, courts used the “Watts factors” in true-threat analysis, considering the context of the threat, the conditional nature and reaction of the listeners. The Watts case came during a time of multiple marches and protests against the war, as the one shown here in Washington D.C. in October 1967 where a sign reads “GET THE HELLICOPTERS OUT OF VIETNAM.” (Photo, public domain via Wikimedia Commons)

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 obscenitychild pornographyfighting 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. 

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. In this photo, members of the Ku Klux Klan circle a burning cross in a field in Oak Grove, Michigan, June 24, 1995 while chanting "white power." (AP Photo/Jeff Kowalsky, used with permission from the Associated Press)
Members of the Ku Klux Klan circle a burning cross in a field in Oak Grove, Michigan, June 24, 1995 while chanting “white power.” About thirty Klan supporters and a few members of the Michigan State Police watched the cross go up in flames. Earlier in the day the Klan held a rally in front of the Hillsdale, Michigan County Courthouse. (AP Photo/Jeff Kowalsky)

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

In this Dec. 1, 2014 photo, John P. Elwood, attorney for Anthony D. Elonis, who claimed he was just kidding when he posted a series of graphically violent rap lyrics on Facebook about killing his estranged wife, shooting up a kindergarten class and attacking an FBI agent, speaks to reporters outside the Supreme Court in Washington. The Supreme Court on Monday threw out the conviction of a Pennsylvania man convicted of making threats on Facebook, but dodged the free speech issues that had made the case intriguing to First Amendment advocates. Chief Justice John Roberts, writing for seven justices, said it was not enough for prosecutors to show that the comments of Anthony Elonis would make a reasonable person feel threatened. But the court did not specify to lower courts exactly what the standard of proof for true threats should be. (AP Photo/Susan Walsh, used with permission from the Associated Press)
In this Dec. 1, 2014 photo, John P. Elwood, attorney for Anthony D. Elonis, who claimed he was just kidding when he posted a series of graphically violent rap lyrics on Facebook about killing his estranged wife, shooting up a kindergarten class and attacking an FBI agent, speaks to reporters outside the Supreme Court in Washington. The Supreme Court on Monday threw out the conviction of a Pennsylvania man convicted of making threats on Facebook, but dodged the free speech issues that had made the case intriguing to First Amendment advocates. Chief Justice John Roberts, writing for seven justices, said it was not enough for prosecutors to show that the comments of Anthony Elonis would make a reasonable person feel threatened. But the court did not specify to lower courts exactly what the standard of proof for true threats should be. (AP Photo/Susan Walsh, used with permission from the Associated Press)

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

 

 

 


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