Freedom of Speech and True Threats

This article proposes a new test for determining what is a true threat - speech not protected by the First Amendment. Despite the importance of the true threats exception to the First Amendment, this is an underexplored area of constitutional law. Even though the Supreme Court has made clear that true threats are punishable, it has not clearly defined what speech constitutes a true threat. To make this determination circuit courts have adopted inconsistent and inadequate tests including a reasonable listener test. The Supreme Court has never granted certiorari to resolve the issue. The law surrounding threats has gained recent attention in two cases involving alleged threats conveyed over the internet: the Nuremberg Files case and the Jake Baker case. A Ninth Circuit decision (currently being considered for en banc review) recently reversed the district court decision in the Nuremberg Files case and its analysis highlights the circuit court confusion on what constitutes a true threat. This article discusses the failings of the current circuit tests, as well as the inadequacy of the alternatives suggested by scholars. This article proposes a new test which adds both an intent prong and an actor prong to the generally accepted reasonable listener test. An extensive test suite of cases demonstrates the efficacy of the proposed test. This article resolves the current confusion and presents a true threats test which provides greater protection for speakers while preserving the rights of potential victims.