The Supreme Court long has said that “true threats” are not protected by the 1st Amendment, but what is a true threat? Although the issue is not new, social media has exponentially increased instances of speech that is perceived as threatening.
Not surprisingly, courts in recent years have struggled with the question of how to determine what is a true threat that can be punished. On Tuesday, in Counterman v. Colorado, the Supreme Court resolved this question and adopted a sensible compromise meant to both protect free speech and safeguard people from being threatened.
Over a half century ago, in United States v. Watts, the Supreme Court held that true threats are speech unprotected by the 1st Amendment. Robert Watts, then 18, attended a rally and stated, “I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” Watts was arrested and convicted for violating a federal law that makes it a crime to “knowingly and willfully” threaten the life of the president.
