The right of free speech is guaranteed under the First Amendment of the Constitution. That’s a concept that most of us learn in grade school. What might often be glossed over, or overlooked, is that there are limits.

The fact is that the amendment doesn’t guarantee free speech at all. What it does is prohibit government from making any law “abridging the freedom of speech.” Over the course of hundreds of years, however, laws and courts have established prohibitions of certain types of speech. Opinions vary on the scope of the list, but most experts agree it includes such things as:

  • Use of obscenities
  • Fighting words
  • Words that incite imminent lawbreaking
  • Perjury
  • Blackmail
  • True threats

That last entry might leave many readers scratching their heads. What follows should hopefully make things clearer.

What’s a true threat?

Making threatening comments isn’t particularly unusual. They surface in all sorts of heat-of-the-moment scenarios in New York. Various laws prohibit making threats. For example, it’s against the law to issue a threat against federal officials. But the first solid court interpretation of what constitutes a true threat came only in 1969.

That year, the U.S. Supreme Court reversed the conviction of a Vietnam war protester found guilty of violating the federal threat law. What got the man in trouble was that he said that if drafted for military service in that unpopular war and given a rifle, He would aim it at then-President Lyndon Johnson.

The high court reversed the conviction saying that the comment didn’t amount to a true threat exception to free speech because of the context in which it was made (a protest), its conditional nature (he said “if”), and the crowd’s reaction (people laughed). Unfortunately, no clear test for determining when a threat is true or not has been nailed down since.

Fast-forward to today

This has significant implications in today’s environment when differences in political opinions and attitudes have taken on a particularly volatile edge. In the age of smartphones and social media platforms, it’s easy to communicate threats, and all the mass shootings in recent years provide evidence that it’s worth taking some seriously.

Authorities do, as legal observers note. One law professor and First Amendment litigator says, “There has definitely been an increase in the visibility of true-threat prosecutions” recently. And another says cracking down on such behavior is justified because the fear it generates poses a threat to the open debate of issues upon which democracy depends.

The implication of all of this is that individuals, thinking their speech is protected, could unexpectedly find themselves facing charges of violating true threat laws. Conviction on such a charge carries a potential penalty of five years in prison and possibly fines.

With true threat prosecutions clearly on the rise, individuals under police scrutiny, or who fear it, should consult with an attorney for the protection of their rights.