TRUE THREATS V. PURE SPEECH: THE INTERSECTION OF PUBLIC SAFETY AND THE FIRST AMENDMENT

By Adithya Mani and Firdaus F. Dordi^*

Introduction

Judge Learned Hand wrote that the First Amendment "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all."¹ Although the penumbra of expression protected by the First Amendment is vast, it is not endless. The Supreme Court has recognized categories of expression that fall outside the First Amendment’s protection.² In Watts v. United States, the Court ruled that a true threat of physical violence is one such category.³ The Court, however, has yet to articulate a clear test and the appropriate mens rea necessary for determining what constitutes a true threat, leaving lower courts, lawyers, and society in a state of uncertainty, guessing where the boundary that separates protected speech from unprotected threats lies.

The advent of the Internet and social media has further complicated this inquiry. When the Internet was still in its infancy, one jurist wrote, "It is no exaggeration to conclude that the Internet has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country—and indeed the world—has yet seen."⁴ Twenty years later, those words resonate even more powerfully than when they were written, and the line of demarcation between the exercise of a fundamental freedom and protecting public safety remains blurred.