The First Amendment status of threats  Watts and later cases make clear that the 1st Amendment permits a State to ban a "true threat.”  What are the state’s interests in punishing threats (in contrast to punishing incitement)?  How does Watts court determine when a “true threat” exists? 1) Content of Speech – what did speaker say? 2) Context of Speech – in what circumstances does speech occur? Why isn’t Watts’ speech threatening under this test? What is the majority worried about if his speech is punished? What is Douglas worried about?

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 his statements are or are not punishable threats?

Claiborne Hardware – threats vs. incitement SCT doesn’t even really analyze this as a threats case. Instead it 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 Evers’s statements under Brandenburg/incitement standard. Claiborne Hardware raises the question of whether public, diffuse, threatening statements should be judged under a threat or incitement standard.  So that’s another thing to think about in these cases

Threats jurisprudence applied  Were the statements to Billie (p. 80 problem 2) true threats?  Were Bruce’s statements (p. 79 problem 1) true threats?

Virginia v. Black and SCT’s intent reqm’t "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 the phrase “speaker means to communicate... intent to commit act of violence” mean? Must the speaker subjectively intend to threaten someone? Or must the speaker subjectively intend to communicate with someone while that person reasonably regards the communication as a threat? Lower courts take both approaches