True Threat Recklessness
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Authors
Strasser, Mark
Issue Date
2024-07
Type
Journal Article
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Abstract
The United States Supreme Court has discussed true threats in several cases but has provided too little guidance about which acts constitute threats that are not protected by the First Amendment. One case stands in contrast to the others—Virginia v. Black, where the Court offered a definition of “true threats.” However, the Court’s application of the definition in that very case caused separate conceptual difficulties. Since the Black opinion was issued, the Court has undermined or modified the definition of “true threat” in ways that are confusing and self-contradictory.
A majority of the justices on the current Supreme Court reject that a statement counts as a true threat merely because a reasonable person might construe that statement as threatening. However, the Court has had great difficulty articulating what counts as a threat, and the Court’s conflation of differing standards not only makes true threat jurisprudence murky, but muddies the waters as a general matter with respect to which statements are afforded constitutional protection.
Part II of this article discusses the development of true threat jurisprudence, noting some of the Court’s difficulties in defining what counts as a true threat. Part III discusses how the Court’s jurisprudence has been changing recently. The Court is clearly trying to limit what counts as a true threat but has offered a test that is confusing and poorly thought out. That is regrettable for a number of reasons. Precisely because such threats are not protected by the First Amendment, both private individuals and society as a whole need a definition of “true threat” that is clear and easily applied. This article concludes that the current standard not only does not give adequate notice about what counts as a true threat, but also will likely result in greater uncertainty about which expressive activity is protected under the First Amendment as a general matter. Claims to the contrary notwithstanding, the Court’s recent attempt to prevent the chilling of speech illustrates that the Court does not appreciate some of the very difficult issues facing the country and is unlikely to provide much insight into what the Constitution protects during these incendiary times.
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Publisher
Creighton University School of Law