When Does Speech Become A Threat?

Threats of violence against another person are considered criminal offences in many places. While the specific laws vary, the general consensus is that a criminal threat involves one person threatening to harm or kill another. The threat must be communicated and the person making it must intend for it to be understood as such. In some cases, the threat must be credible, specific, and imminent for it to be considered a criminal offence. For example, threatening to shoot people while holding a gun is a credible and imminent threat, whereas threatening to blow up the world is not. Assault, which involves attempting to physically injure someone or using threatening actions accompanied by threats of force, is a similar but distinct offence. In the context of universities, threats of violence are prohibited and may result in disciplinary action, expulsion, or legal consequences.

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Criminal threats vs. free speech

While the Constitution guarantees the right of free speech, that right is not absolute. There are limitations to free speech, including prohibitions against slander and libel. In some situations, speech can even constitute a crime, such as in the case of criminal threats.

A criminal threat involves one person threatening someone else with physical harm or death. For a conviction, the prosecution must prove that the defendant communicated a threat of harm to another and that the defendant intended for the communication to be taken as a threat. The threat must be capable of placing someone in fear of harm and lead them to conclude that the threat is credible, real, and imminent.

True threats constitute a category of speech that is not protected by the First Amendment and can be prosecuted under state and federal criminal laws. This includes obscenity, child pornography, fighting words, and the advocacy of imminent lawless action. The speaker need not intend to carry out the threat, but the prosecution must prove that they intended to communicate a threat.

In the case of Watts v. United States, the Court held that only "true" threats are outside the ordinary First Amendment protections. The defendant in Watts expressed his opposition to the military draft at a public rally, saying, "If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J." The Supreme Court ruled that Watts' remark was "political hyperbole" and did not constitute a true threat.

In another case, Virginia v. Black, the Supreme Court considered a First Amendment challenge to a state law that banned cross-burning with the intent to intimidate. The Court held that states could theoretically prohibit such cross-burnings as a "true threat." Intimidation can be prohibited as a type of true threat when a speaker directs a threat to a person or group with the intent of placing the victim in fear of bodily harm or death.

Assault and intent

In the context of criminal law, a threat to incite violence against someone else can constitute a criminal threat or assault. While specific laws vary across different states and countries, here is an overview of the key considerations regarding assault and intent:

Criminal Threats

A criminal threat generally involves threatening to kill or physically harm another person. This can include verbal, written, or electronic communications. To constitute a criminal threat, several elements must be present:

• Intent: The person making the threat must intend to seriously injure or kill the victim.
• Communication: The threat must be communicated to the intended victim or a third party.
• Credibility: The threat must be credible and capable of placing the victim in fear of harm. It should lead the victim to believe that the threat is real and imminent.
• Understanding: The person making the threat intends for their statement to be understood as a threat, regardless of their ability or intention to carry it out.

Assault

Assault typically involves attempting to physically injure someone or using threatening actions accompanied by threatening words. While words alone may not constitute assault in most jurisdictions, combining them with physical actions can qualify as assault. Here are some key considerations regarding assault:

• Physical Action: Assault usually requires some form of physical action beyond mere words. For example, approaching the victim in a threatening manner while making threats can constitute assault.
• Touching: In most scenarios, assault involves actually touching the victim. This could include hitting, pushing, or any other form of physical contact that inflicts harm or creates a reasonable apprehension of harm.
• Use of Weapons: The involvement of weapons, especially deadly ones, can elevate the severity of assault charges and penalties.
• Specific Intent: In some cases, assault may require specific intent, meaning the perpetrator intends to cause fear or apprehension of violence in the victim.

It is important to note that the specific definitions and requirements for criminal threats and assault may vary depending on the jurisdiction. The information provided here offers a general overview, and it is always advisable to seek legal counsel for specific cases or questions.

Credible, real, and imminent threats

For a threat to be considered credible, real, and imminent, it must be capable of placing someone in fear of harm and lead them to conclude that the threat is believable, tangible, and impending. While words alone may not be sufficient to constitute a criminal threat, the context and manner in which they are communicated play a significant role in determining the credibility and imminence of the threat.

For instance, threatening to blow up the world if one doesn't get their desired chocolate pastry is unlikely to be perceived as a credible and imminent threat. On the other hand, walking into a store with a gun and threatening to shoot everyone is a clear and present danger that instils fear of imminent harm.

In the context of educational institutions, universities like George Washington University have policies that prohibit all threats and acts of violence on their campuses and properties. They encourage members of the university community to promptly report any threats or acts of violence to the appropriate authorities, including the university police department and local law enforcement. Disciplinary actions, up to and including expulsion or termination, may be enforced to maintain a safe environment for all.

In the legal context, the term "true threats" refers to statements where the speaker intends to communicate a serious expression of an intent to commit an act of unlawful violence against a particular individual or group. The Supreme Court has ruled on cases involving threats made over social media, setting a precedent that speech is not protected by the First Amendment if the speaker "consciously disregarded a substantial risk that his communications would be viewed as threatening violence."

To summarise, a credible, real, and imminent threat involves a communication of harm that is believable, tangible, and impending. The presence of a weapon, specific details, and a history of violent behaviour can all contribute to the perception of a threat as credible and imminent. Context, tone, and the recipient's perception also play a role in determining the seriousness of a threat.

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Threats against public officials

A criminal threat is constituted when an individual threatens to kill or physically harm someone else. This crime may also be referred to as terroristic threats, threats of violence, malicious harassment, or menacing. While the Constitution guarantees the right to free speech, there are limitations to this right, and speech can, in some cases, constitute a crime.

In the case of threats against public officials, there has been a steady rise in such incidents over the last decade. This trend is driven, in part, by an increase in ideologically motivated threats, often of an anti-government and identity-based nature. These threats are often a means of communicating grievances regarding political, social, or religious issues.

The anonymity provided by digital technology and the relative ease of access to public officials have contributed to the increase in threats. Social media platforms, such as Facebook, MySpace, and Twitter, have become vectors for investigated alleged threats against public officials, particularly the President. For example, after the 2016 presidential election, there were 12,000 calls for President Donald Trump's assassination on Twitter.

In addition to threats against the President, there have been cases of threats against other government officials, such as legislators and judges. These threats can include cyberstalking, witness tampering, and the illegal distribution of private information.

To address these threats, law enforcement agencies, such as the FBI, can use National Security Letters to obtain the identities and internet logs of senders. However, the line between protected speech and criminal threats can sometimes be blurry, presenting a challenge in formulating an effective response.

Threats on university campuses

Threats of violence against someone else can constitute a criminal offence in many jurisdictions. A criminal threat involves one person threatening someone else with physical harm or death. The threat must be credible, real, and imminent, and the person making the threat must intend for it to be understood as such.

University campuses are not immune to threats and acts of violence, and these can come from a variety of sources, including students, staff, and outsiders. For example, George Washington University prohibits all threats and acts of violence on its campuses and has procedures in place for reporting and responding to such incidents. The university will take disciplinary action, including expulsion or termination, against any student, faculty, or staff member who violates this policy.

In other cases, threats on university campuses may be directed at specific individuals or groups, such as professors or researchers. For instance, university professors engaged in biomedical research have received death threats, including threats against their family members. In another case, a parent of an incoming freshman discovered that their child's assigned roommate had made references to bombing the school and taking mass casualties on social media.

University campuses have also faced threats of violence from extremists. In one case, extremists targeted a university laboratory due to its use of animals in research, and authorities became concerned that insiders may have set up the attack. Additionally, the FBI's National Center for the Analysis of Violent Crime (NCAVC) has responded to cases of potential mass shooters on college and university campuses.

Furthermore, threats to free speech on university campuses can create an environment of fear and intimidation. For example, during the 2024 Israel-Hamas war, 55% of students found it difficult to discuss the Israeli-Palestinian conflict on campus. Universities such as Harvard, Columbia, and NYU have been ranked as having an "abysmal" speech climate due to low levels of administrative support for free speech and student comfort in expressing controversial views.

Finally, funding threats and international student arrests can also impact university communities. For instance, students at Columbia University have raised concerns about the state of academic freedom and the Trump administration's influence on campus. Protests and discourse on these issues have led to a chilling effect, with students becoming less willing to identify themselves at protests due to safety concerns.

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