What is the role of “intent” in determining true threats?

1. What is the role of “intent” in determining true threats? • Prior to Virginia v. Black, lower courts took different approaches: • Reasonable speaker – should speaker have reasonably foreseen that someone would take her speech as a threat? • Reasonable listener – would a reasonable listener find the speaker’s statements threatening? • Defining intent this way raises significant line-drawing concerns re whether punishing too much speech • Asking whether one “should have foreseen” or allowing an audience member to determine existence of a threat makes it harder for speaker to determine when speech will be considered a threat • Potential chilling effect on speaker

2. Virginia v. Black & SCT’s definition of intent • "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 [although the] speaker need not actually intend to carry out the threat. • Virginia v. Black, 538 US 343 (2003) • What does “speaker means to communicate . . . intent to commit act of unlawful violence” mean? • Does it mean that speak must subjectively intend to threaten someone? • Or does it require only that speaker subjectively intend to communicate with someone and that person reasonably regards the communication as a threat?

3. Claiborne Hardware • Charles Evers’s speeches contained some statements that can be interpreted as threats. Does his speech transcend the boundaries of the First Amendment. • What factors suggest that it does or does not?

4. Claiborne Hardware’s Standard • SCT doesn’t even really analyze this as a threats case. Instead says • If violence had followed Evers’s use of “strong language,” there would have been a “substantial question” as to whether he was liable for that violence. BUT when appeals for unity and action in a common cause “do not incite lawless action, they must be regarded as protected speech” even if they contain threatening statements. • SCT effectively analyzes this under Brandenburg/incitement standard. • Claiborne Hardware raises the question of whether public, diffuse, threatening statements should be judged as threats or incitement

5. Are the following punishable as threats? • The maker of alleged threats to the SCT justices in Problem 2 p. 86? • A who allegedly threatens the judges on his blog in reading assignment? • Z who allegedly threatens X (the Citibank employee) in an email?

6. The Supreme Court’s Threats Jurisprudence – Some Issues • Easy to say we can determine a threat from “content” & “context” when • (1) words are clearly threatening, • (2) the speaker is the actor apparently intending to carry out the threat, and • (3) the audience clearly receives the threat and understands it is meant for them. • Even then it’s not always clear when a threatening statement is simply hyperbole

7. The Supreme Court’s Threats Jurisprudence – Some Issues, Cont’d • BUT absent those circumstances, many issues are unresolved and highly dependent on how things “fit together” in any given case: • Can one infer an implicit threat from context alone when words themselves are not threatening? What constitutes an implicit threat? Is publication of true information a threat? • How does the presence of others who may carry out the threat affect the requirements of punishment (i.e., treatment of the case as incitement)? What relationship must the crowd have with the speaker to treat it as threat versus incitement versus political hyperbole? • Does the speaker have to receive the threat before it can be punished? • What if the threat is issued in a public statement instead of privately?