Defendants in both criminal and civil cases can use the First Amendment as a defense, arguing that their speech should be protected. However, the free speech clause of the Constitution has never been read to protect all speech.[12] Speech such as obscenity, fighting words, child pornography, incitement, and "true threats" is considered outside the protections of the First Amendment.[13] Therefore, the defendant cannot use the First Amendment as a defense for statements which are deemed true threats.
Even though the Supreme Court has made clear that true threats are punishable, it has not clearly defined what speech constitutes a true threat. The only Supreme Court case to elaborate a holding on the basis of the true threats exception to the First Amendment is United States v. Watts,[14] a per curiam decision which made clear that a law "which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech."[15] However, the Supreme Court did not provide a specific test for making this distinction.
To determine when speech is protected by the First Amendment, and therefore not punishable as a threat, most circuits have adopted either a reasonable speaker or a reasonable listener test. Both these tests essentially boil down to an evaluation of whether or not a reasonable recipient of the statement would believe it constituted a true threat.[16] The Supreme Court has never reviewed the differing circuit court tests to determine their constitutionality or the validity of the circuits' interpretations of Watts.
Most circuits have allowed for the admission of the alleged victim's reaction as evidence of how a reasonable person would interpret the statement. Combined with the reasonable speaker/listener test this makes it possible for people who did not purposely, knowingly, or even recklessly make a threat to be punished for making one. For example, even where the speaker had no expectation that the alleged victim would hear the statement, the speaker can be held liable or convicted of making a threat in most courts.
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