The Supreme Court has long recognized that "true threats" of illegal conduct are excluded from First Amendment protection. But what mental state does the government have to show to prove that something is a true threat?
- Is it enough to show that a reasonable person would have recognized it as threatening (a mental state generally labeled "negligence")?
- Does the government have to show that the speaker recognized it was quite likely to be perceived as threatening, and ignored that risk (generally called "recklessness")?
- Does the government have to show that the speaker knew it was nearly certain to be perceived as threatening (generally called "knowledge")?
- Does the government have to show that the speaker specifically had the aim of making people feel threatened (generally called "purpose")?
Oddly enough, the Court has never resolved this question, though such "mens rea" elements are key parts of many other First Amendment tests:
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