Is making a threat “free speech”?
The right to bear arms is not the only right outlined in the constitution that has limits. Threats, incitement, defamation, fraud, obscenity, child pornography and fighting words have all been reasons to land someone in court for the things that they’ve said aloud, despite the constitutional right to free speech.
Threats are among the simplest to define, but exactly where the line falls is still not entirely defined. There are three U.S. Supreme Court cases that help show where the line between free speech and criminal threat lies.
Watts v. United States
In 1969, the U.S. Supreme Court heard the case of Watts v. United States.
In 1966, 18-year-old Black American Robert Watts was on stage at a public rally. He said to the crowd, “… If they ever make me carry a rifle, the first man I want to get in my sights is LBJ.”
Lyndon B. Johnson, a.k.a. “LBJ”, president from Nov. 22, 1963 to Jan. 20, 1969. Photo via Wikimedia Commons.
This was considered a threat against the president in a time of war, and Watts was arrested. Watts’ appeal rose to the Supreme Court after previous courts convicted him of threatening the president under sedition laws.
The judges pointed out that, despite the crowd’s reaction (laughter), there could still be a sinister implication to the words. After all, they wrote, “History records that applause and laughter frequently greeted Hitler’s predictions of the future of the German Jews.”
The Supreme Court, however, overturned Watts’ conviction, but only after distinguishing Watts’ words from a “true threat”. They said Watts’ words were “a kind of very crude, offensive method of stating a political opposition to the president.”
Because of the context, the reaction of the crowd, and the conditional nature of the statement, they ruled it was protected free speech. But that also meant there existed a “true threat” exception to free speech as well. The Supreme Justices, however, declined to define a true threat, leaving the question open for the future.
NAACP v. Claiborne Hardware Co.
In 1973, a trial began between 17 merchants in Claiborne County, Mississippi, and defendants including the NAACP, the Mississippi Action for Progress, and more than 100 individuals. The merchants sought to recover losses caused by a boycott. The boycott was about, among other things, the recent shooting of a young Black man.
During the boycott, NAACP field secretary Charles Evers said, “If we catch any of you going into these racist stores, we’re going to break your damn neck.”
“Black Hats” had been posted outside the stores to identify people who broke the boycott, which seemed to add credence to the threat. Violent incidents against some individuals had also been recently reported.
The Chancery Court of Hinds County found the defendants guilty of malicious interference with the businesses, antitrust for driving customers to other businesses, and more. The court rejected the First Amendment defense argued by the NAACP, and ordered them to repay more than $1 million in estimated damages.
In 1980, the Mississippi Supreme Court upheld the original decision based solely on the idea of malicious interference, throwing out the antitrust claim as inapplicable.
In 1982, the Supreme Court overturned the decision entirely. They found that the incidents of actual violence predated Evers’ threat, the prosecution lacked evidence that there was intention to follow through with the threat, and that in the absence of actual violence, Evers’ speech was protected, “occupying the highest rung of the hierarchy of First Amendment values.”
Virginia v. Black
Virginia had a law that declared any cross-burning was “prima facie” evidence of an intent to intimidate, due to the history of its use as a symbol of white supremacy. Barry Black was arrested under this statute after burning a cross at a Ku Klux Klan rally on private property and with consent.
The Supreme Court overturned his conviction and the Virginia law in 2003, saying that without the intent to threaten or intimidate someone, the simple act of burning a cross fell under First Amendment protections.
A True Threat
While a “true threat” has no legal definition, we can use these legal precedents to conclude a couple of things about them.
A “true” threat has to be credible, and not just used as a figure of speech. There has to be evidence of an intent to follow through with the threat. Furthermore, the action needs to be directed toward a present individual or group of individuals.
If it doesn’t meet these high standards, a threat is still protected under the First Amendment.
