by Ben Lazarus*

How should the law determine whether a true threat was made with intent sufficient to not merit First Amendment protection? In this Contribution, Ben Lazarus (’18) analyzes the different approaches circuit courts have taken to answer this question. This Contribution argues that an objective test for what constitutes a threat is most in line with the Supreme Court’s precedents and reasoning when confronting threatening speech.

True threats, like obscenity, libel, and fighting words, are not protected by the First Amendment.2 Threats are statements that elicit fear in their intended audience, whether of physical, emotional, or social harm.3 A threat must be made with intent.4 However, there is some disagreement about how the law determines intent. Most of the Circuit Courts of Appeals apply an objective “reasonable person” standard to determine whether speech rises to the level of a true threat, and thereby loses its First Amendment protections.5 The Ninth Circuit has diverged, applying a subjective test to determine when speech is a true threat.6 For speakers facing sanctions for their words, whether a school suspension7 or a prison term,8 the distinction between objective and subject standards is critical. This Contribution will argue that an objective test for what constitutes a threat is most in line with the Supreme Court’s precedents and reasoning when confronting threatening speech.

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The Court’s holdings on what level of intent is required for a true threat have been Delphic, at best. The case that spawned the True Threat Doctrine was Watts v. United States.9 In that case, an 18-year-old named Robert Watts announced to a group assembled by the Washington Monument to protest the war in Vietnam:

They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.10

A jury found Watts guilty of “knowingly and willfully threatening the President,” which was subsequently upheld by the D.C. Circuit. The Supreme Court reversed in a short per curiam opinion. Looking at the statement in context, the Court noted that the speech was political by nature, that it was stated in the conditional, and that those listening “laughed after the statement was made.”11 Therefore, the Court reasoned, the statement could not be interpreted to be a true threat and without First Amendment protection.

It would be another 34 years before the Supreme Court meaningfully re-examined the True Threat Doctrine. In Virginia v. Black, the Court struck down a statute that made it a felony “for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place . . . . Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.”12 Justice O’Connor, writing for a plurality of the Court, held that Virginia could lawfully criminalize burning a cross with the intent to intimidate, but that treating the mere act of burning a cross as prima facie evidence of the accused’s intent “permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense.”13 Justice O’Connor distinguished between burning a cross at a political rally, which can be “a statement of ideology, a symbol of group solidarity”14 and burning a cross on a neighbor’s lawn “with the purpose of threatening or intimidating a victim[.]”15 Because the statute did not make intent-based distinctions before finding prima facie evidence of a true threat, it violated the First Amendment.

The Virginia v. Black opinion makes clear that the statute in question was unconstitutional. But it is not clear why. One reading is that it is unconstitutional to convict a person for threatening speech without proving that the speaker had the subjective intent to threaten. Another reading is that the constitutional defect of the Virginia statute stemmed from treating cross-burning as a strict liability crime. Where a defendant refused to mount a defense, he could be convicted without proof of any level of intent, whether subjective or objective. Such situations where burning a cross might be prima facie evidence of a threat would thus be akin to strict liability. If this second reading is correct, and only the strict liability construction was unconstitutional, then applying an objective, reasonable person test of intent to threaten—criminal negligence—would be permissible.

Some circuits look for intent to communicate the objectively threatening speech, not for intent to threaten. These courts do not read Virginia v. Black to require true threats to contain any subjective intent to threaten on behalf of the speaker. In Porter v. Ascension Parish School Board, Judge Higginbotham held “[s]peech is a ‘true threat’ and therefore unprotected if an objectively reasonable person would interpret the speech as a serious expression of an intent to cause a present or future harm,” citing the First and Eighth Circuit precedents that apply similar objective “reasonable person” tests.16 In Porter, a child’s violent drawing was brought to school by his younger brother. Because the child who drew the picture never intended for the drawing to reach school, it was not a true threat.17 The “speaker” who drew the picture never intended for it to be seen by the other students in the school, and thus he lacked the requisite intent to communicate.18

Applying Porter’s reasoning to the facts of Virginia v. Black illustrates the reasonable person test for threats that are not protected by the First Amendment. A person who burns a cross at a Klan rally has not intentionally communicated threatening speech to the object of the threat, whereas a person who burns a cross on a neighbor’s lawn has. What the speaker intended to communicate by the speech itself would be irrelevant. Liability is determined with no reference to any thoughts that may or may not be in the speaker’s mind at the time. Only intent to communicate and whether a reasonable person would find the speech to be threatening are relevant.

The Ninth Circuit took a different tack, requiring that a speaker must possess a subjective intent to threaten in order for his speech to be considered a true threat. In United States v. Cassel, a very unfriendly neighbor in the Mojave Desert of California informed two prospective buyers of land parcels adjacent to his that anything built there “would definitely burn.”19 Addressing threats for the first time since the Supreme Court had decided Virginia v. Black, the Ninth Circuit abandoned its prior objective approach and declared “eight Justices agreed that intent to intimidate is necessary and that the government must prove it in order to secure a conviction. We cannot but conclude that the same principle governs in the case before us.”20

While the split among the circuits appears to be shallow—with the Ninth Circuit on one side and all others who have considered the questions on the other21—the Supreme Court had the opportunity to resolve the conflict in Elonis v. United States.22 They declined. Instead, the Court opted for the narrower holding that a federal statute criminalizing threats without an explicit mens rea should not be read to require negligence.23 The Court was silent as to whether sanctioning speech according to an objective negligence standard would be constitutional, only that it would be an inappropriate reading of 18 U.S.C. § 875(c). In concurrence, Justice Alito advocated for the Court to adopt a recklessness standard, lamenting “[w]e granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded—not clarified—the confusion.”24

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The fundamental disagreement between the two readings of the Virginia v. Black decision supra is whether Black prohibits negligence or only strict liability in true threat cases. Was the problem with Virginia’s statute that it did not require a subjective intent to threaten, or was it that the statute allowed for convictions of cross-burners with no reference to intent, not even an objective negligence standard? The Ninth Circuit finds the former;25 the majority of Circuits to have considered the question find the latter, as exemplified by the Fifth Circuit’s opinion in Porter.26 The majority position is the better reading of the Court’s jurisprudence because it is most in line with Supreme Court precedent and the reason for excepting threats from First Amendment protection.

The Virginia v. Black Court never questioned the constitutionality of criminal penalties for a person who burns a cross on his neighbor’s lawn. Rather, it objected to a statute that treated burning a cross in a political context in the same way as burning a cross in a threatening context.27 The Court’s precedent contains no indication that the Court is concerned with the subjective beliefs of the person who burns a cross on his neighbor’s lawn. If an inquiry into subjective intent were the law, as the Ninth Circuit says, a court could fashion either a negligence or a recklessness standard by which to judge subjective intent. But the distinction between how a reasonable person would perceive speech (negligence) and conscious disregard of a known risk (recklessness) is meaningless with respect to speech like burning a cross, because any reasonable person would understand this to be a threat, and because cross-burning is a universally known symbol of hate and violence. Nothing in the Virginia v. Black opinion suggests that a court must find intentional or knowingly threatening behavior, as the Ninth Circuit suggests in Cassel.28 In other words, the Supreme Court did not find a negligence standard unconstitutional; it found only strict liability to be unconstitutional.

This reading of Virginia v. Black also aligns with the factors that the Court cited in Watts v. United States.29 There, the Court looked at objective indicia: was the speech political? Was it conditional? How did the audience react? The nature of the threat was determinable from the objective facts of the speech’s context, which speaks to its understanding by the reasonable speaker or hearer, not the understanding of any particular, subjective speaker. The objective negligence standard used in the First, Fifth, and Eighth Circuits best follows the Court’s objective approach in Watts.

An objective inquiry is also consistent with the original rationale for denying threatening speech First Amendment protection. The canonical explanation for why some speech is not deserving of First Amendment protection comes from Chaplinsky v. New Hampshire.30 As Justice Murphy explained, some speech is of “such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”31 Threats meet this criterion because of their deleterious effects on “order and morality.” And while speech is presumptively protected, threats lose their protection the moment the balance tips towards those negative effects—an inquiry that can only be conducted in reference to the effects of speech on society. A subjective inquiry into the intentions of a speaker tells us nothing about speech’s effect on social order, which is the reason to exempt it from First Amendment protection in the first place.

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The Supreme Court has never directly addressed whether true threats require that a speaker possess the subjective intent to threaten or whether it is enough that reasonable person would find the speech threatening. The solid majority of the Circuit Courts apply an objective test, but the Ninth Circuit does not. A careful reading of the high Court’s precedents and reasoning suggest that the majority has it right.

* Ben Lazarus is a 3L at New York University School of Law. This piece is a commentary on the 2017 moot court problem at the Seigenthaler-Sutherland National First Amendment Moot Court Competition, held in Washington, DC. The problem dealt with a high school student who made allegedly threatening comments to a transgender student at her school and whether her subsequent suspension violated her First Amendment rights. The views expressed in this article do not necessarily represent the views of the author on this point of law. Rather, this article is a distillation of one side of an argument assigned to the team that the author represented in the competition.
2. See, e.g., Watts v. United States, 394 U.S. 705, 707 (1969).
3. See, e.g., Virgina v. Black, 538 U.S. 343, 360 (2003).
4. Id. at 359.
5. See, e.g., Porter v. Ascension Parish School Board, 393 F.3d 608 (5th Cir. 2004) (applying a reasonable hearer standard); United States v. Fuller, 387 F.3d 643, 645 (7th Cir. 2004) (“this objective standard is proper”); United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997) (applying a reasonable speaker test); United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996) (applying a multi-factor objective test).
6. See United States v. Cassel, 408 F.3d 622 (9th Cir. 2005)
7. See, e.g., Wynar v. Douglas Cty. Sch. Dist., 728 F. 3d 1062, 1075 (9th Cir. 2013)
8. See, e.g., Elonis v. United States, 135 S. Ct. 2001 (2015)
9. Watts, 394 U.S. at 707.
10. Id. at 706.
11. Id. at 707
12. Virginia v. Black, 538 U.S. 343, 348 (2003).
13. Id. at 365.
14. Id. at 366.
15. Id.
16. Porter v. Ascension Parish School Board, 393 F.3d 608, 616 (5th Cir. 2004) (citing Doe v. Pulaski County Special School District, 306 F.3d 616 (8th Cir. 2002); see also United States v. Fulmer, 108 F.3d 1486, 1490–91 (1st Cir. 1997)).
17. See Porter, 393 F.3d at 616.
18. Id.
19. United States v. Cassel, 408 F.3d 622, 625 (9th Cir. 2005).
20. Id. at 633.
21. See, e.g., United States v. White, 670 F.3d 498, 510 (4th Cir. 2012) (collecting cases).
22. See Elonis v. United States.135 S. Ct. 2001 (2015).
23. Id. at 2013.
24. Id. at 2014 (Alito, J., concurring).
25. See United States v. Cassel, 408 F.3d 622, 625 (9th Cir. 2005).
26. See Porter v. Ascension Parish School Board, 393 F.3d 608, 616 (5th Cir. 2004), discussed supra at note 14.
27. See Virginia v. Black, 538 U.S. at 366.
28. See Cassel, 408 F.3d at 625.
29. See Watts v. United States, 394 U.S. 705, 707 (1969).
30. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
31. Id. at 572.