Robert De Niro’s YouTube rant targeting the President of the United States, available to all on YouTube, may have surprised many conservative fans of the movie star, but it never crossed the Constitutional divide into the zone of conduct that could be the basis of criminal liability, that is, a “true threat.” The same may be said for comedian Kathy Griffin’s Twitter post in which she is pictured holding a mask made to look like the severed head of President Trump. Interestingly, while Facebook has recently been roundly criticized for lapses in privacy protections for its customers, its user friendly platform available for threatening speech has garnered little attention. The opportunity to express oneself to a vast audience on the global Internet stage presents continuing legal issues when the conduct falls into the electrified constitutional free speech versus true threat danger zone. This article will discuss recent cases addressing some of the more frequently raised issues concerning the parameters of the true threats doctrine.

True Threats Doctrine

The U.S. Supreme Court first articulated the true threats exception to speech protected under the First Amendment in Watts v. United States, 394 U.S. 705 (1969). In Watts, the defendant, a Vietnam war protestor, was arrested under 18 U.S.C. §875(c), which prohibits threats against federal officials. Defendant had stated that if he was drafted and issued a rifle, the first person in his sights would be President Lyndon B. Johnson. His conviction was reversed by the high court, finding that his statement was “political hyperbole” rather than a true threat. Three factors were emphasized by the court in its decision: the context was a political speech; the statement was “expressly conditional” and the “reaction of the listeners” who “laughed after the statement was made.” Id. at 707-08. The burden is on the government to demonstrate that the suspect speech falls within one of the narrow categories of unprotected speech, such as true threats, fighting words, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct.” True threats are not protected speech and may be defined as statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. Virginia v. Black, 538 U.S. 343, 347-48 (2003). Whether or not the speaker intends to carry out the threat is immaterial to deny him constitutional protection. This is because the true threats prohibition is intended to protect individuals from the “disruption” and “fear of violence” as much as from the violence itself. Virginia v. Black, 538 U.S. at 360.