Understanding Constitutional Threats: Defining Danger

The US Constitution does not offer protection to true threats, which are defined as statements made with the intention of placing the victim in fear of bodily harm or death. The Supreme Court has held that true threats are not protected under the US Constitution based on three justifications: preventing fear, preventing the disruption that follows from that fear, and diminishing the likelihood that the threatened violence will occur. The Court has also cited that only true threats are outside ordinary First Amendment protections. The speaker need not intend to carry out the threat, but the prosecution must prove that they intended to communicate a threat.

Explore related products

Threat Assessment and Management Strategies

$57.19 $110

Insidious Threats (Sasha McCandless Legal Thriller Series)

$4.99 $14.99

Don’t Let a Lawsuit Take Away Everything: Strategies for Guarding Your Wealth Against Legal Threats

$9.99 $39.99

Rogue Threat (Threat Series Book 2)

$4.99 $25

Mortal Threat (Threat Series Book 4)

$7.99 $12.25

Managing the Insider Threat: No Dark Corners

$35.71 $74.99

'True threats' are not protected by the First Amendment

The First Amendment of the U.S. Constitution protects freedom of speech, but there are certain categories of speech that are not protected by it. These include obscenity, child pornography, fighting words, and the advocacy of imminent lawless action. "True threats" also fall into this category of unprotected speech and can be prosecuted under state and federal criminal laws.

The Supreme Court has cited three reasons why threats of violence are outside the First Amendment: protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur. In the case of Watts v. United States (1969), the Court held that only "true threats" are outside the First Amendment's protections. In this case, an anti-Vietnam War protester, Robert Watts, was prosecuted and convicted for threatening President Lyndon B. Johnson after saying at a rally, "If they ever make me carry a rifle, the first man I want to get in my sights in L.B.J.". The Supreme Court ruled that Watts' remark was "political hyperbole" that did not constitute a true threat.

To constitute a true threat, the speaker must intend to communicate a threat, although they do not need to intend to carry it out. The Supreme Court has not always been clear on the level of intent required, and this has led to some disagreement among lower appellate courts. In 2023, in the case of Counterman v. Colorado, the Court adopted the rule that speech is not protected if the speaker "consciously disregarded a substantial risk that his communications would be viewed as threatening violence.". In this case, Billy Raymond Counterman was convicted of stalking after sending numerous disturbing messages over Facebook to a female musician.

The Supreme Court has also ruled that political hyperbole and statements made in jest are not true threats and are protected under the First Amendment. In Virginia v. Black (2003), the Court ruled that states may criminalize cross burning with the intent to intimidate, as long as prosecutors can prove that the act was intended as a threat and not as a form of symbolic expression. In this case, the Court defined "true threats" as 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 speaker need not intend to carry out the threat

The First Amendment does not protect "true threats", which are a category of speech that includes obscenity, child pornography, fighting words, and the advocacy of imminent lawless action. True threats are defined as statements where the speaker expresses a serious intention to commit an act of unlawful violence against a particular individual or group.

For a statement to qualify as a true threat, it must be understood by a reasonable person as expressing an intent to commit unlawful violence. Even if a person believes they are being threatened, if that belief is unreasonable, the statement is not constitutionally a threat.

In Virginia v. Black (2003), 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. The court defined "true threats" as 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.

In the case of Watts v. United States (1969), the Supreme Court overturned Watts' conviction for stating at an anti-war rally, "If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.". The Court deemed this statement to be political hyperbole that did not constitute a true threat.

The recipient must reasonably regard it as a serious expression of harm

The concept of "true threats" is not protected by the First Amendment. The Supreme Court defined "true threats" in Virginia v. Black (2003) as "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 Supreme Court has outlined three reasons why threats of violence are outside the First Amendment: protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur. This was cited in R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).

It is important to distinguish true threats from protected speech, such as political hyperbole or symbolic expression. For example, in Watts v. United States (1969), the Supreme Court overturned Watts' conviction for stating at an anti-war rally, "I am not going", as it was deemed protected speech. Similarly, cross burning done as "a statement of ideology, a symbol of group solidarity" would be protected speech.

Explore related products

Imminent Threat

$6.32 $20

Sensitive Security Information, Certified® (SSI) Body of Knowledge (Center for National Threat Assessment Book 2)

$104.5 $110

Silent Threat

$7.31 $13.56

Managing the Insider Threat

$142.42 $170

Capitol Threat: A Novel (Ben Kincaid series Book 15)

$8.99 $25.95

Handbook of Terrorist and Insurgent Groups: A Global Survey of Threats, Tactics, and Characteristics

$80 $100

Intimidation is a type of true threat

Intimidation is a behaviour that involves deterring or coercing an individual through the threat of violence. It is often employed to make the other person submissive, to force compliance, or to socially valorize oneself. Intimidation can be committed consciously or unconsciously and can take many forms, including physical contact, verbal abuse, purposeful embarrassment, and non-verbal cues such as a glowering countenance.

In the legal context, intimidation is considered a crime in various jurisdictions and can be prosecuted as a criminal or civil offence. It is similar to other crimes such as menacing, coercion, terrorizing, and assault. Intimidation is often a component of other crimes, such as criminal mischief, cyberbullying, hate crimes, and extortion, where threats and intimidation are used to coerce or harm the victim.

Intimidation is also recognised as a "true threat" under the First Amendment of the US Constitution. A "true threat" is a category of speech that is not protected by the First Amendment and can be prosecuted under state and federal criminal laws. Specifically, intimidation as a "true threat" occurs when a speaker directs a threat to a person or group with the intent to place them in fear of bodily harm or death.

The Supreme Court has provided clarification on "true threats", stating that only true" threats are outside the ordinary First Amendment protections. This means that individuals are protected from the fear of violence, the disruption that fear causes, and the possibility of the threatened violence occurring. The Court has also emphasised that the prosecution must prove that the speaker intended to communicate a threat, even if they did not intend to carry it out.

In summary, intimidation is a type of "true threat" where the speaker directs a threat toward a person or group with the intent to instill fear of bodily harm or death. This interpretation of intimidation as a "true threat" is an important aspect of constitutional law and helps protect individuals from the negative impacts of threatening behaviour.

The Supreme Court has cited three reasons why threats of violence are outside the First Amendment

The First Amendment protects the freedom of speech, but the Supreme Court has drawn a line when it comes to "true threats", which are outside ordinary First Amendment protections. The Supreme Court has cited three reasons why threats of violence are outside the First Amendment:

• Protecting individuals from the fear of violence: The court aims to protect people from living in fear and the potential disruption that such fear can cause. Intimidation is a type of true threat where a speaker directs a threat to a person or group, intending to place them in fear of bodily harm or death. For instance, cross burning has been deemed a form of intimidating speech, often intended to create a pervasive fear in victims that they are a target of violence.
• Protecting against the disruption that fear engenders: The Supreme Court also considers the potential for disruption that fear can cause. For instance, in the case of Virginia v. Black (2003), the Supreme Court held that states may criminalize cross burning as long as prosecutors can prove that the act was intended as a threat and not as a form of symbolic expression.
• Protecting individuals from the possibility that the threatened violence will occur: The court aims to prevent violence by prohibiting true threats. In the case of Watts v. United States, the defendant, an anti-Vietnam War protester, 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 reversed his conviction, ruling that his remark was political hyperbole that did not constitute a true threat.

While the First Amendment protects freedom of speech, the Supreme Court has made it clear that true threats of violence are not afforded such protection. The Court's cited reasons for this exception focus on protecting individuals from fear, disruption, and the potential for violence.

Frequently asked questions