True Threats

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. Tue threats—like obscenity, child pornography, fighting words, and the advocacy of imminent lawless action—constitute a category of speech that is not protected by the First Amendment. Although the other aforementioned categories have received specific definitions from the Supreme Court, the Court has [Page 1081] mentioned the true threats category only in a handful of cases and has never fully developed a test to delineate its boundaries.

Left to their own devices, the federal circuit courts 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.

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 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.

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