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When is threatening speech protected by the First Amendment?

The First Amendment protects us from being prosecuted or persecuted by the government for what we say -- our opinions, our arguments and our rants. That said, not all speech is protected by the First Amendment. Fraud, plagiarism, defamation, perjury and solicitation to commit crimes are all examples of speech that is not protected. Also, incitement to imminent lawless action and true threats fall outside the First Amendment's protection.

Yet sometimes, threatening language is used hyperbolically or merely for the sake of argument. 

This is especially common when people are in the grip of strong emotion -- or perhaps when they are intoxicated. Many people engage in angry or drunken rants in which they put things more strongly than they actually mean. Yet we don't see people being put behind bars for a rant.

That is because hyperbolic or rhetorical threats are protected by the First Amendment. Only true threats put people at risk of criminal prosecution.

What constitutes a 'true threat' that can be prosecuted?

The U.S. Supreme Court addressed how to recognize a true threat in its 1969 case Watts v. United States, a case involving a Vietnam War protester who said, "If they ever make me carry a rifle, the first man I want to get in my sights is LBJ."

The Supreme Court found that this statement did not constitute a true threat. They based their decision on the context of the statement, its conditional nature, and the reaction of the listeners. These are now known as the Watts factors.

However, there are other ways of considering whether a threat is real enough to be prosecutable, including:

  • Whether the statement was intended as a threat by the speaker
  • Whether the object of the threat would be reasonable in feeling threatened

Unfortunately, the Supreme Court has not made clear whether either of those factors should be considered. This leaves the law in a state of some uncertainty.

If you plan on posting a Facebook rant or an angry YouTube video, the nature of that rant, its context and the audience reaction should be taken into account in determining whether any rhetorical threats you make will be considered real. Before you let it all out, however, keep in mind that true threats are not protected. It's best to avoid intentional threats or anything a reasonable person would perceive as a true threat. If your hyperbole gets a reaction from the government, call an experienced criminal defense lawyer right away.

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