How and why true threats are unprotected speech

There are very few exceptions to the First Amendment, and a “true threat” is one of them. But determining what qualifies as a true threat isn’t always easy. After the U.S. Supreme Court first examined true threats more than fifty years ago, the doctrine remained unsettled, with the Court not even providing a definition of the term until many years later. Even then, questions remained because, as the Court has cautioned, courts must be careful to distinguish between threats and constitutionally protected expression.

So what is a true threat? And how does it differ from charged political rhetoric or hyperbolic expression?

Creating the exception of ‘true threats’

The Supreme Court recognized that certain threats fall outside the First Amendment’s protection in Watts v. United States (1969), a case that actually involved political hyperbole. Robert Watts, a young African-American man at a protest in Washington, D.C., stated to others around him: 

Now I have already received my draft classification as 1-A, and I have got to report for my physical this Monday morning. 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. [President Lyndon Johnson]. They are not going to make me kill my black brothers. 

An Army intelligence officer overheard Watts and reported him to police. The federal government charged Watts with threatening the president. 

Watts challenged the constitutionality of the statute to no avail, and a jury convicted him. However, the Supreme Court reversed because Watts’ statement was nothing more than “political hyperbole.”

The Court acknowledged that “the Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and allowing him to perform his duties without interference from threats of physical violence.” However, the Court also recognized that Watts’ words were political hyperbole protected by the First Amendment. The Court focused on several factors, including (1) the context of the statement; (2) whether the alleged threat was conditional; and (3) the reaction of the audience. These came to be known as the “Watts factors.” 

All three factors worked in Watts’ favor: he delivered his remarks in the context of a political debate and protest, his “threat” was conditioned on an event he said would never occur, and both Watts and the audience laughed after he made the statement. 

Supreme Court defines ‘true threats’

What the Watts Court did not do, however, was provide a definition of true threats. Decades later, the Court did so in the cross-burning case Virginia v. Black (2003). The case involved two separate cross burnings. The first was led by Ku Klux Klan leader Barry Elton Black, who burned a cross on farmland with the permission of the property owner. The other involved two individuals — Richard Elliott and Jonathan O’Mara — who burned a cross in the yard of an African-American neighbor. 

Prosecutors charged all three under a Virginia law that criminalized cross burning with the intent to intimidate another person. The Court held that the statute’s ban on cross burning with the intent to intimidate — that is, to make a threat “with the intent of placing the victim in fear of bodily harm or death” — is constitutionally permissible. The Court explained: 

True threats encompass those statements where the speaker intends to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders.

However, the Court invalidated another provision of the law, the so-called prima facie provision of the statute, because all cross burnings are not the same. 

“The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation,” the Court wrote. “But that same act may mean only that the person is engaged in core political speech.” The difference is whether the act is a “serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

To qualify as a true threat, a statement must convey a serious expression of intent to commit unlawful violence against a particular individual or group. 

The Court reversed Black’s conviction, noting that he burned the cross as part of a Klan rally on farmland with the permission of the property owner. In other words, his act of burning the cross was “core political speech,” not a true threat. The Court vacated the judgments against Elliott and O’Mara and remanded the case for further proceedings. 

After the Black decision, lower courts differed on whether a defendant subjectively intended that his statements were considered threatening. Many courts, relying on language in Black, simply required that a reasonable third party perceive the statements in question as threatening.

Clarifying the defendant’s state of mind in threat cases 

Finally, in the stalking case Counterman v. Colorado (2023), the Court addressed whether a speaker must specifically intend to threaten the victim. Billy Ray Counterman, who had been diagnosed with a mental illness, sent numerous messages to the musician through Facebook. Some of the messages were frightening to the victim, including, “Staying in cyber life is going to kill you,” and, “You’re not good for human relations, Die!” 

Colorado charged Counterman with making repeated comments to 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.” 

The trial court determined that Counterman’s messages rose to the level of true threats. The Colorado Supreme Court affirmed. However, Counterman argued that he was convicted for his protected speech and certainly without the prosecution showing that he subjectively intended the messages to be threatening. 

The Supreme Court agreed with Counterman and reversed his conviction. The Court reasoned that speakers must at least act recklessly in uttering statements that could be interpreted as threatening. The Court explained that the First Amendment requires the speaker to have “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

FIRE wrote an amicus curiae brief to the Court arguing that the government must prove specific intent to threaten for the threats to fall outside the First Amendment’s protection. One alternative — a general-intent standard — holds speakers accountable for statements made with no subjective intention of causing harm. Applied to Counterman’s case, the Court noted that he was convicted based only on the reaction of the victim without any showing that he had any subjective intent to threaten. Thus, he was convicted under a negligence-type standard, which is why the Court vacated his conviction.

In conclusion, true threats remain a narrow unprotected category of speech in First Amendment jurisprudence. To qualify, a statement must convey a serious expression of intent to commit unlawful violence against a particular individual or group. Furthermore, the prosecution must prove that the speaker intended the statement as a threat or recklessly disregarded that it would be perceived as a threat.