How do courts determine whether speech is a “true threat”?
The U.S. Supreme Court has ruled that true threats receive no First Amendment protection. Unfortunately, the Court has not clearly defined a test for determining what types of speech constitute a true threat. As a result, the lower courts have adopted a variety of tests to determine whether speech constitutes a true threat. Some courts have determined that “if a reasonable person would foresee that an objective rational recipient of the statement would interpret its language to constitute a serious expression … [then] the message conveys a ‘true threat.’ ” Other courts consider a series of factors in determining whether speech constitutes a true threat, including (1) the reaction of the recipient of the speech; (2) whether the threat was conditional; (3) whether the speaker communicated the speech directly to the recipient; (4) whether the speaker had made similar statements in the past; and (5) whether the recipient had reason to believe the speaker could engage in violence.
The U.S. Supreme Court has ruled that true threats receive no First Amendment protection. Unfortunately, the Court has not clearly defined a test for determining what types of speech constitute a true threat. As a result, the lower courts have adopted a variety of tests to determine whether speech constitutes a true threat. Some courts have determined that “if a reasonable person would foresee that an objective rational recipient of the statement would interpret its language to constitute a serious expression . . . [then] the message conveys a ‘true threat.’ ” Other courts consider a series of factors in determining whether speech constitutes a true threat, including (1) the reaction of the recipient of the speech; (2) whether the threat was conditional; (3) whether the speaker communicated the speech directly to the recipient; (4) whether the speaker had made similar statements in the past; and (5) whether the recipient had reason to believe the speaker could engage in violence. The L
