In Counterman, Colorado had convicted Billy Raymond Counterman of stalking after he sent numerous disturbing messages over two years to a female musician using Facebook. Colorado adopted the rule that speech is not protected if the speaker “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” The speaker need not actually intend to carry out the threat, but the prosecution must prove that he or she intended to communicate a threat. Cases that have reached the Supreme Court in recent years have involved threats made over social media.Īfter some disagreement among lower appellate courts about the level of intention needed, the Supreme Court in 2023 in Counterman v. True threats constitute a category of speech - like obscenity, child pornography, fighting words, and the advocacy of imminent lawless action - that is not protected by the First Amendment and can be prosecuted under state and federal criminal laws. in October 1967 where a sign reads "GET THE HELLicopters OUT OF VIETNAM." (Photo, public domain via Wikimedia Commons)Ī true threat is a statement that frightens or intimidates one or more specified persons into believing that they will be seriously harmed by the speaker or by someone acting at the speaker’s behest.
The Watts case came during a time of multiple marches and protests against the war, as the one shown here in Washington D.C.
Later, courts used the "Watts factors" in true-threat analysis, considering the context of the threat, the conditional nature and reaction of the listeners. Johnson after he said at an anti-war rally, "If they ever make me carry a rifle, the first man I want to get in my sights in L.B.J." The case went to the Supreme Court, which said that Watts' remark was the sort of "political hyperbole" that did not constitute a true threat, and ruled the statute that criminalized threats against the president as unconstitutional on its face. An anti-Vietnam War protester, Robert Watts, was prosecuted and convicted for threatening President Lyndon B.
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