Also known as: true threat · true-threat · true threat doctrine
Written by attorneys — see sources below.
A category of unprotected speech consisting of statements in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence against a particular individual or group. The speaker need not intend to carry out the threatened act. The prohibition protects people from the fear of violence and the resulting disruption.
Tobias Thomas and fellow students gathered at midnight on the main lawn beside campus housing and burned a large wooden cross. They posted on social media tagging faculty member Tanya Tang by name and listing her home address while criticizing a new university policy. Tang saw the flames and posts from her window and feared for her family's safety. The university suspended Thomas pending investigation into whether the conduct amounted to a true threat.
Theodore Tucker sent dozens of Facebook messages to musician Tara Tran expressing romantic interest while also implying he was watching her movements. Tran grew fearful that Tucker was following her and contacted police. Tucker was charged under a stalking statute. At trial he argued the messages lacked the required mental state to qualify as true threats.
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.
View caseTracy Torres led five protesters on a public sidewalk outside a hospital during a nurse's memorial service. They held signs accusing the deceased nurse of helping murder children and naming her personally. The nurse's brother saw the signs through the chapel window and suffered severe emotional distress. He sued for intentional infliction of emotional distress, claiming the signs crossed into unprotected true threats.
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.
View caseNo. The definition requires only that the speaker means to communicate a serious expression of intent to commit unlawful violence. The prohibition protects against the fear of violence and its disruptive effects even when the speaker has no plan to act.
Yes. Cross burning is not automatically a true threat. A state may not treat every instance as prima facie evidence of intent to intimidate. The defendant must be allowed to show an expressive, non-threatening purpose such as political protest.
Supporting sources
True threats focus on creating fear of future violence and do not require imminent breach of the peace. Fighting words are personally abusive epithets likely to provoke immediate physical retaliation. The two categories overlap but rest on distinct harms.
The government must show the speaker acted with at least recklessness as to whether the statement would be understood as a serious threat. Mere negligence is constitutionally insufficient.
Supporting sources
…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…