It’s just another morning. You wake up, get the coffee going, and check social media. You dropped a characteristically witty post before bed and you’re looking forward to the responses. Thirty-four likes, the usual assortment of emojis, a few short comments.
But then you freeze on a hateful comment. “Someone should shut this b***h up.” And a response: “Don’t worry. I’ll take care of it.” Your heart pounds. Your mind races. Have you just been threatened?
In practice, yeah, you were threatened. Legally, however, it’s more complicated.
For most of American history, the First Amendment did not protect anything resembling a threat, mostly because, for most of American history, the First Amendment didn’t protect any speech that didn’t support the status quo.
Watts v. United States was the first case in which the U.S. Supreme Court explicitly grappled with threatening speech. In 1966, Robert Watts, an 18-year-old civil rights worker from Harlem, attended a demonstration near the Washington Monument. Speaking to a group of his fellow activists, Watts said, “If they ever make me carry a rifle, the first man I want to get in my sights is LBJ.” Watts was convicted of “knowingly and willfully threatening the President.” In 1969, the Supreme Court disagreed, finding that Watts’ speech was not a genuine, or “true” threat, but rather “crude political hyperbole.”
Watts v. United States created a new category of unprotected speech, the “true threat.” Unfortunately, the Court never explained what a true threat was, just why Watts’ words were not an example, and they haven’t been eager to enlighten us. For example, in 2015, the Court heard the case of Anthony Elonis, who posted messages (rap lyrics, he argued) on social media that seemed to threaten his wife, co-workers, law enforcement and elementary school children. The Court’s decision sidestepped the biggest issues in the case.
As a result, we don’t know exactly when a threat falls outside the protection of the First Amendment. Does the speaker need to have the purpose of instilling fear into the listener? Or does the speaker need to know that their words would instill fear? Or is it enough that the speaker knew there was a serious risk of that? The Supreme Court left these questions to your local trial judges and the divided circuit courts, meaning what constitutes a threat depends on where you live.
The issue is a little fuzzy. But there are a few elements that make a statement more likely to qualify as a legal threat. The more a threat concerns public figures or political matters, the more likely it will be protected. As the Court found in Watts, political speech can be “vituperative, abusive, and inexact,” and is more likely to be protected than a personal threat against a private citizen.
Threats also usually require some expression of intent to carry out that threat. “I am going to kill you tomorrow” is obviously a threat. However, “I hope someone kills you tomorrow” or “someone should kill you” don’t indicate that the speaker means to carry out the threat.
Conditional threats are also given more leeway by the courts. If a threat requires that other things happen first, especially unlikely things, the courts are less likely to consider it a true threat.
Lastly, courts tend to take specific threats more seriously. In the case of “I am going to kill you tomorrow,” the speaker lists the harm (death) and when that harm would occur (tomorrow). “If you don’t stop posting, something might happen that you won’t like,” on the other hand, is vague enough that a prosecutor might not be able to meet the legal standards involved.
Unfortunately, the people who harass, intimidate and threaten online know how maximize the impact of their words while minimizing their own legal risk.
Few threats on the internet are made to signal an actual attack. Rather, they typically intend to inflict emotional harm and force unwanted people and opinions out of a certain space.
Of course, “typically” isn’t very reassuring, and no one should minimize the impact of emotional harm. A law prohibiting threats, in the words of the Supreme Court, “protects individuals from the fear of violence and the disruption that fear engenders,” in addition to the possibility that a person might actually carry out their threats.
If you think you’ve been threatened and want to do something about it, talk to an attorney. If you know the threatener, you’d likely want a lawyer to help draft a restraining order. You can also typically sue for threats that are intentional or reckless and that cause significant emotional distress.
As we’ve seen, many types of threats are illegal, so another option would be to file a police report. There’s no guarantee the threatener will be prosecuted, but it provides the police with something to work from and could be used as evidence if charges are filed.
Jacob Hillesheim is a Minnesota educator who has taught courses in American history, world history, military history, government and criminal justice and law. He holds master’s degrees in teaching and learning and in history. He has never—never—said “no” to ice cream.