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 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)

True threat tests now determine whether the speaker intended to communicate a threat

The true threats category is broad enough to reach not only those statements that target the recipient for harm but also those that pledge harm to third parties who are near and dear to the recipient. The speaker need not actually intend to carry out the threat, but the prosecution must prove that he or she intended to communicate a threat. Thus, the foregoing examples would constitute true threats even if the speaker did not actually intend to kill the recipient or the recipient’s family.

But in the wake of Virginia v. Black, it now seems clear that the speaker must actually intend, through a statement, to instill fear in the recipient. More precisely, speech may be deemed unprotected as a true threat only upon proof that the speaker subjectively intended the speech as a threat. This idea — that only intentional threats may be punished under the First Amendment — has not yet been incorporated by the federal circuits into the various tests they have formulated for true threats.

The Ninth Circuit’s thoughtful opinion in United States v. Cassel (9th Cir. 2005) suggests that those tests will have to be revised — the requisite intent to communicate a threat must be gauged by a subjective, and no longer an objective, standard. In other words, the test should no longer inquire whether a reasonable person would regard the statement as a threat; instead, the question is whether the speaker actually intended to communicate a threat.

True threats do not include political hyperbole and joking statements

The true threats category does not encompass political hyperbole and statements uttered in jest. In Watts v. United States (1969), the Supreme Court sided with an 18-year-old anti-war protester who was being prosecuted for threatening President Lyndon B. Johnson. The defendant was arrested at an anti-war rally for telling a crowd of demonstrators, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” He was convicted under a federal statute that criminalizes any threat to kill or injure the president. Although the Court deemed the statute constitutional on its face, it held that the defendant’s remark was the sort of “political hyperbole” that did not constitute a “true threat.” Accordingly, it could not be deemed to fall within the statute’s reach and could not be punished under the First Amendment.

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)

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.

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