The United States Supreme Court is poised to decide whether the true threats exception to speech protection under the First Amendment requires a jury to find the defendant subjectively intended his statements to be understood as threats. United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013).
True threats what? Yep. In First Amendment theory, when an individual makes an objectively true treat, courts will look to the First Amendment to see whether that speech is protected or not by examining the subjective intent. Since a threat is generally a violation of criminal law, a person may say, “look, I was only joking. The First Amendment protects my right to make jokes without government punishment.” The person’s intent was to make a joke, not to make a threat. That is how subjective intent can be the deciding factor whether a threat is protected by the First Amendment or not.
The United States Supreme Court determined in Virginia v. Black, 538 U.S. 343 (2003) “true threats” are not protected by the First Amendment. “True threats encompass those 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.” Id. at 359 (internal quotations omitted).
Arizona has had a few of its own true threat cases that have gone before state appellate courts. In fact, there is a case currently in Maricopa County Superior Court dealing with a similar fact pattern to the Elonis case. I wrote earlier about a New York man who threatened Nancy Grace and Jane Velez-Mitchell via twitter while they covered the Jodi Arias trial. I am not sure if the true threats doctrine is being used in this case or not, but it could potentially based upon the media’s fact patterns.
This is a really good article that goes into depth in this hot topic. It discusses the correlation between free speech and guilty minds. It is a good read to stay up to date on the latest First Amendment trends and to prepare for the United States Supreme Court upcoming term.
It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.
Leslie Kendrick, Free Speech and Guilty Minds, 114 Col. L. Rev. 1254.