Also known as: true threats · true threat doctrine
Written by attorneys — see sources below.
A category of unprotected speech consisting of 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 prohibition protects people from the fear of violence and the disruption that fear produces. Cross burning performed with intent to intimidate qualifies as a true threat because of its historical association with impending violence.
Vincent organized a midnight demonstration on the university lawn next to faculty housing. Group members burned a large cross and posted messages on social media that tagged specific professors and listed their home addresses. The timing, location, and targeted posts created a direct communication of intimidation that the university and police could treat as an unprotected true threat.
Tanner Thompson posted a series of violent rap-style lyrics on Facebook that named his estranged wife and described killing her with explosives. His wife and coworkers read the posts and reported genuine fear for their safety. A jury could find the communications constituted true threats because a reasonable person would interpret them as serious expressions of intent to inflict bodily harm.
Anthony Douglas Elonis was an active user of the social networking website Facebook. In May 2010, Elonis’s wife of nearly seven years left him, taking with her their two young children. Elonis began listening to more violent music and posting self-styled rap lyrics inspired by the music under the pseudonym Tone Dougie. The lyrics Elonis posted included graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement. This material was often interspersed with disclaimers that the lyrics were fictitious with no intentional resemblance to real persons. Elonis posted a photograph of himself holding a toy knife against a co-worker’s neck with the caption I wish, after which the chief of park security fired him. Elonis posted an adaptation of a satirical sketch in which he substituted his wife for the President. The posting described firing a mortar launcher at her house from the cornfield behind it. After viewing some of Elonis’s posts, his wife felt extremely afraid for her life and obtained a three-year protection-from-abuse order against him. Elonis posted about the order and referenced having enough explosives to take care of the State Police and the Sheriff’s Department. Elonis posted an entry stating he had enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. After park security informed the FBI, agents monitored Elonis’s Facebook activity and visited his house. Elonis then posted Little Agent Lady describing slitting an FBI agent’s throat and detonating a bomb. A grand jury indicted Elonis on five counts of violating 18 U.S.C. §875(c). At trial Elonis requested a jury instruction that the government must prove that he intended to communicate a true threat. The District Court instead instructed the jury that a statement is a true threat when a defendant intentionally makes a statement in a context wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of an intention to inflict bodily injury. The jury convicted Elonis on four of the five counts. The Third Circuit affirmed. The Supreme Court granted certiorari.
Tessa Takahashi and fellow protesters stood on a public sidewalk outside a funeral and displayed signs condemning the deceased soldier's military service. The signs contained no statements expressing an intent to commit violence against any individual. The conduct remained protected speech rather than a true threat because it conveyed political opposition without communicating a serious expression of intent to inflict unlawful harm.
Marine Lance Corporal Matthew Snyder was killed in action in Iraq. His father, Albert Snyder, arranged for the funeral to be held in Westminster, Maryland. Members of the Westboro Baptist Church, an unincorporated association founded by Fred Phelps, learned of the funeral through local newspapers and decided to picket it to communicate their belief that God punishes the United States for its tolerance of homosexuality. On the day of the funeral, Westboro members displayed placards on public land approximately 1,000 feet from the church where the service was held. The signs included messages such as "God Hates the USA," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "You’re Going to Hell," and "God Hates Fags." The picketing took place for about 30 minutes before the funeral began. The funeral procession passed within 200 to 300 feet of the picketers. Church members also posted an online "epic" that discussed Matthew Snyder’s funeral and criticized his parents. Albert Snyder filed a diversity action in the United States District Court for the District of Maryland against Fred Phelps, his daughters, and the Westboro Baptist Church. The suit alleged claims for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury found for Snyder and awarded $2.9 million in compensatory damages and $8 million in punitive damages. The district court reduced the punitive damages award to $2.1 million but left the verdict otherwise intact. The Fourth Circuit reversed the judgment, holding that Westboro’s statements were protected by the First Amendment. The Supreme Court granted certiorari to review whether the First Amendment shields the church members from tort liability for their picketing speech.
A true threat requires a serious expression of intent to commit unlawful violence against a particular person or group. Political speech that expresses opposition or anger without communicating such an intent remains protected even if crude or offensive. Courts examine context, including timing, location, and targeting of specific individuals, to determine whether the speech crosses into an unprotected threat.
…v. United States , 394 U. S. 705. The speaker need not actually intend to carry out the threat; rather, the prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, as well as from the possibility that the threatened violence will occur. The prima facie evidence…
…to those adopted in Pearce could readily be applied without sacrificing the values of jury sentencing, I must dissent. The true threat of vindictiveness at a retrial where the jury metes out the sentence comes from the trial judge and prosecutor. Either or both might have personal and institutional reasons for desiring to…
No. The definition focuses on whether the speaker intends to communicate a serious expression of intent to commit violence. Actual intent to follow through is not required. The prohibition protects listeners from the fear of violence regardless of whether the speaker plans to act.
Yes. Cross burning performed without intent to intimidate may qualify as protected expression. The state may not treat every instance of cross burning as prima facie evidence of intent to intimidate. The defendant must have an opportunity to show an expressive, non-threatening purpose.
Social-media posts can constitute true threats when a reasonable person would interpret them as serious expressions of intent to commit violence. Courts consider the full context of the posts, including any history between the parties and the reactions of recipients. The doctrine applies to online statements the same way it applies to in-person statements.