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What is a true threat?

The U.S. Supreme Court, in its 2003 ruling Virginia v. Black, said 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. The speaker need not actually intend to carry out the threat.” The Court also explained that “[i]ntimidation 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.”

Before Black, the 1969 ruling Watts v. United States was the controlling case for true threats. In Watts, the Supreme Court reversed a lower court that found a student’s statement at a political rally was a true threat. The high court looked at three elements of the statement to determine that it was merely political hyperbole and not a true threat. The justices looked at 1) the context of the statement, 2) the expressly conditional nature of the statement, and 3) and the reaction of the listeners. These factors are still considered by the courts.

How have the lower courts handled the question of true threats?

The lower courts have handled true-threat cases in different ways. Most courts have adopted something called the “objective test.” Basically, it “focuses on whether a reasonable person would interpret the purported threat as a serious expression of an intent to cause a present or future harm” (United States v. Dinwiddie 76 F.3d 913 (8th Cir. 1996).) One problem with this test is that different circuits use different “actors” as the reasonable person. Some use the reasonable-speaker test and ask “whether a reasonable person standing in the shoes of the speaker would foresee that the recipient would perceive the statement as a threat.” Other circuits use a reasonable-recipient test where the question is, would a reasonable person in the recipient’s place view the statement as a threat. The last objective test is the reasonable-person test where it is asked, would a reasonable third party, hearing the statement, interpret it as a threat.

In addition, some circuits have also tacked on a “subjective” element to the test where courts seek to determine the intent of the speaker. Courts will try to determine whether the speaker intended his statement to be a threat, regardless of intent to carry out the threat. An additional subjective element, trying to determine whether the speaker intended to actually carry out the threat, has fallen out of use and is no longer considered in true-threat cases.

In Dinwiddie, the 8th U.S. Circuit Court of Appeals developed a list of factors to determine if a statement would be interpreted as a true threat. The 8th Circuit wrote, “the reaction of the recipient of the threat and of other listeners, whether the threat was conditional, whether the threat was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim in the past, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence. This list is not exhaustive, and the presence or absence of any one of its elements need not be dispositive.”

Is it constitutional to have a separate law covering threats against the U.S. president?

Yes. In Watts v. United States (1969,) the U.S. Supreme Court noted that “the statute under which petitioner was convicted (18 U. S. C. S. § 871) is constitutional on its face. The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence.”

How is the true-threats doctrine applied to student speech?

There are some special considerations when looking at true threats and student speech. A school must maintain a safe and effective learning environment; to this end the school administration “need not tolerate student speech that is inconsistent with its ‘basic educational mission,’ even though the government could not censor similar speech outside the school” (Hazelwood School District v. Kuhlmeier (1988).) This means that school officials may regulate student speech when they can demonstrate that such speech would “substantially interfere with the work of the school or impinge upon the rights of other students” (Tinker v. Des Moines Independent Community School District (1969).)

The bottom line is student speech is subject to more regulation than adult speech. In addition many schools implemented “zero-tolerance” policies after the Columbine attack. These policies allow the schools to quickly suspend or expel students found to have violated the law or school policies. These factors change the analysis for true threats when applied to student speech. There is one other element that courts look at where student speech is concerned: did the speech occur on or off campus? Courts have ruled that speech that takes place off-campus is entitled to more First Amendment protection, while speech that occurs on-campus can be regulated (Porter v. Ascension Parish School Board, 393 F.3d 608, 613 (5th Cir. 2004).)

What constitutes 'imminent lawless action'?

In 1969, the U.S. Supreme Court ruled in Brandenburg v. Ohio that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe 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."

In its 1973 ruling Hess v. Indiana, the Supreme Court clarified what constitutes imminent lawless action. The Supreme Court said that the speech involved in Hess, “was not directed to any person or group of persons” therefore “it cannot be said that [the speaker] was advocating, in the normal sense, any action.” The Court also said that “since there was no evidence, or rational inference from the import of the language, that [the speaker’s] words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’”

The Supreme Court has said that for speech to lose First Amendment protection, it must be directed at a specific person or group and it must be a direct call to commit immediate lawless action. The time element is critical. The Court wrote that “advocacy of illegal action at some indefinite future time … is not sufficient to permit the State to punish Hess' speech.” In addition, there must be an expectation that the speech will in fact lead to lawless action.

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