By Ben Lazarus1

            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.

* * * * *

            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.


1. 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.