What is a True Threat

If you’ve recently engaged in a verbal argument with someone, or if you said some things you didn’t quite mean in the heat of the moment, you may now be worried that you can be held legally responsible for the things you said. Indeed, it is possible to be charged with assault if you threaten someone else. For example, Tennessee Code § 39-13-101 (a)(2) encompasses within its definition of assault “intentionally or knowingly caus[ing] another to reasonably fear imminent bodily injury.” Yes, this means someone can report you for making threats that place them in fear of their safety. However, not all of these threats are “true” threats that can be prosecuted in a court of law. Some forms of speech (including some threats) are protected by the First Amendment, whereas other forms of speech can be considered crimes.

What is a True ThreatOn June 27, 2023, in Counterman v. Colorado, the Supreme Court of the United States further defined when a threat leaves the bounds of the First Amendment’s protection and becomes a “true threat.”

The Supreme Court decided in 1969 in Watts v. United States (394 U.S. 705) that the First Amendment’s protection of freedom of speech does not protect true threats. Without creating a clear definition of a “true threat,” the Court laid out three factors that separate true threats from free speech: the context of the statement(s) in question, the reaction of the recipient(s), and whether or not the statement was conditional. These so-called “Watts factors” have been used by lower courts for decades to gauge whether a statement falls under the umbrella of free speech, or whether it is a true threat. According to Justice Sandra Day O’Connor, “’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” (Virginia v. Black, 538 U.S. 343 (2003)).

In recent years, especially with the ever-rising popularity of social media, there has been much disagreement amongst the lower courts about what constitutes a true threat. The courts have had to decide whether repeated, unwanted, and/or threatening messages on social media are true threats, or protected by the First Amendment. In the process of reviewing true threats on social media, courts have also expanded our understanding of what true threats in any form are.

Billy Counterman was charged under Colorado Rev. Stat. §18–3–602(1)(c), a statute against stalking, for repeatedly sending unwanted Facebook messages to a local musician. With the messages ranging from affectionate to angry and violent, the musician began to fear for her safety, canceling gigs and outings with friends. Eventually, she chose to press charges against Counterman. Counterman then moved to dismiss the charge, arguing that his statements were not “true threats” and were thus a protected form of speech. When the case went to trial, the only evidence the State of Colorado presented were Counterman’s Facebook messages to the musician. The State sufficiently proved with this evidence that a reasonable, objective person would view the messages as threatening. However, another question arose as Counterman’s case moved through the appellate courts: can a statement be a true threat if the speaker did not intend to threaten?

The case made it all the way to the Supreme Court of the United States, which decided that the First Amendment “requires proof that the defendant had some subjective understanding of the threatening nature of his statements” (Counterman v. Colorado (2023)). Counterman argued that he is mentally ill, and did not intend for his messages to cause fear. This does not mean that individuals’ statements are immediately protected under the First Amendment if they didn’t maliciously intend to cause fear, though. The Supreme Court elaborated that “a mental state of recklessness is sufficient” for a statement which would cause a reasonable person to fear bodily harm to be considered a true threat. The prosecution “must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence” (Counterman v. Colorado (2023)). Therefore, if the prosecution can prove that an individual’s statement would cause a reasonable person fear and that the individual either intended to cause fear or disregarded the risk that the statement could be perceived as a threat, that individual can be criminally charged.

Let’s consider what this decision means for Georgia’s law against terroristic threats, found in OCGA § 16-11-37.

According to the law, a person commits the offense of a terroristic threat when they threaten to commit any crime of violence, release any hazardous substance, or burn/damage property with the intent to terrorize another person, cause the evacuation of a place, or otherwise cause serious public inconvenience. A person can also be held liable for terroristic threat if they make a threat in “reckless disregard of the risk of causing the terror, evacuation, or inconvenience.” That’s a lot to break down! Basically, a “terroristic threat” is threatening harm with the intent to terrorize or inconvenience another individual or the public. Terroristic threats are misdemeanors. However, if the threat included death, it may be considered a felony punishable by fines not to exceed $1,000 and/or a prison term ranging from one to five years. Furthermore, if the threat is made in an attempt to interfere with the functioning of the criminal justice system (such as intimidating someone to prevent them from sharing information with law enforcement), the State of Georgia may punish the offender with fines not less than $50,000 and/or a prison sentence of 5 – 20 years.

The Counterman v. Colorado (2023) decision places a burden on the State of Georgia to prove when charging individuals with terroristic threats under OCGA §16-11-37 that the individual either intended to terrorize or consciously disregarded the risk that their threat would cause terror. For the most part, these provisions are already built into the statute. The main element which may change in Georgia terrorist threat cases moving forward is the element of conscious disregard. The recently decided standard of recklessness demands conscious disregard of the risk of causing terror.

So, why did the Court decide on this standard of recklessness? Historically, “Prohibitions on speech have the potential to chill, or deter, speech outside their boundaries” (Counterman v. Colorado (2023)). According to the Court’s opinion, the application of a recklessness standard will provide breathing room for protected speech while still allowing for the prosecution of true threats. In upcoming years, we will see how this standard plays out in other court cases, which will ultimately determine whether or not the recklessness standard can truly protect free speech while deterring true threats.

If you are concerned that something you or a loved one has said may be prosecuted as a true threat, make sure you hire an experienced criminal defense attorney. Garth Best and Matt Brock are skilled at navigating the criminal justice system, stay up to date on recent court decisions, and take a personalized approach to each case. Contact us online here or call us at (423) 829-1043 to set up your free consultation!