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How do courts determine whether speech is a true threat?

The Supreme Court has ruled that true threats receive no First Amendment protection.1 Unfortunately, the Court has not clearly defined a test for determining what types of speech constitute a true threat.2 As a result, the lower courts have adopted a variety of tests to determine whether speech constitutes a true threat.

Some courts have determined that "if a reasonable person would foresee that an objective rational recipient of the statement would interpret its language to constitute a serious expression . . . [then] the message conveys a 'true threat.'"3

Other courts consider a series of factors in determining whether speech constitutes a true threat, including (1) the reaction of the recipient of the speech; (2) whether the threat was conditional; (3) whether the speaker communicated the speech directly to the recipient; (4) whether the speaker had made similar statements in the past; and (5) whether the recipient had reason to believe the speaker could engage in violence.4

The Louisiana Supreme Court, for example, ruled that a student could face criminal charges for saying that it would be easy to shoot students he didn't like and that he was going to blow up the school.5 The state high court noted that the student made the comments only five days after the Columbine tragedy, and emphasized "the climate of fear already surrounding the school."6

However, a California appeals court recently ruled that a student could not be criminally charged under an antithreat law for turning in a painting depicting extreme violence against a peace officer who, a month earlier, had cited the student for drug possession.7

The state appeals court noted that "a painting -- even a graphically violent painting -- is necessarily ambiguous."8 The appeals court also noted that the student never showed the painting to the peace officer, but simply turned in the painting as a class project.

Many cases regarding true threats made by students are just now circulating through the state and federal courts. Consequently, school officials are advised to seek legal counsel in this evolving area of the law.


1 Watts v. U.S., 394 U.S. 705 (1969).

2 Rothman, J. E. (2001). Freedom of Speech and True Threats. Harv. J. L. & P.P., 25, 283, 288 ("Even though the Supreme Court has made clear that true threats are punishable, it has not clearly defined what speech constitutes a true threat.").

3 U.S. v. Miller, 115 F.3d 361 (6th Cir. 1997), cert. denied, 522 U.S. 883 (1997).

4 See Jones v. State of Arkansas, 64 S.W.3d 728, 735 (Ark. 2002) (determining that a student giving his rap song threatening violence to another student was a true threat).

5 State ex rel. R.T., 781 So.2d 1239 (La. 2001).

6 Id. at 1247.

7 In re Ryan D., Case No. C035092, 2002 Cal. App. LEXIS 4453 (Cal. App. 3rd Dist., July 30, 2002).

8 Id. at *16.

Last updated: Monday, October 22, 2018 | 09:32:58