If you recently argued with someone, sent an angry text, posted something online, or said something you now regret, you may be wondering whether your words could lead to criminal charges. In Tennessee, the answer depends heavily on exactly what was said, the surrounding circumstances, how the statement was communicated, and the state of mind the prosecution can prove.
Some threatening speech can be punished. Other speech remains protected by the First Amendment. The line between the two is not always obvious, especially when a statement is emotional, conditional, sarcastic, posted online, or made during an escalating dispute.
Can a Threat Be Charged as Assault in Tennessee?
Yes. Tennessee’s assault statute does not require physical contact in every case. Under Tennessee Code § 39-13-101(a)(2), a person commits assault when the person intentionally or knowingly causes another person to reasonably fear imminent bodily injury.
That means words, conduct, or a combination of both can potentially support an assault charge if the circumstances reasonably cause the other person to fear bodily injury that appears imminent. The question is not simply whether someone felt uncomfortable or offended. The alleged fear must relate to imminent bodily injury, and the prosecution must prove the required mental state.
For example, an angry statement made while someone is approaching another person aggressively may be evaluated differently from the same words sent days later from another state. Context matters.
Tennessee courts have explained that fear may be inferred from the circumstances surrounding an alleged assault. The conduct of the person who received the threat, the distance between the parties, whether weapons were present, prior conduct, and what happened immediately before and after the statement can all become important evidence.
Tennessee Harassment Charges Based on Threats
Tennessee also has a separate harassment statute that directly addresses threatening communications. Under Tennessee Code § 39-17-308, a person may commit harassment by intentionally communicating a threat to another person when the speaker intends the communication to be a threat of harm and a reasonable person would perceive the communication as a threat of harm.
The harassment statute also addresses certain communications made without a lawful purpose when the person intends the frequency or method of communication to annoy, offend, alarm, or frighten the recipient and actually causes that result.
This can make text messages, direct messages, emails, phone calls, social-media posts, voicemails, and other electronic communications important evidence. A single sentence should not always be evaluated in isolation. Investigators, prosecutors, and defense attorneys may examine the full conversation, what came before the statement, what followed it, and whether the messages were part of an ongoing dispute.
What Is a “True Threat” Under the First Amendment?
The First Amendment protects a broad range of speech, including speech that may be offensive, angry, unpleasant, or unpopular. But the United States Supreme Court has long recognized that “true threats” are outside the core protection of the First Amendment.
In Virginia v. Black, the Supreme Court described true threats as serious expressions conveying an intent to commit unlawful violence against a particular individual or group. The concept does not require that every threatening statement actually be carried out.
Older true-threat cases often focused heavily on how a reasonable listener would understand the words. But in 2023, the Supreme Court added an important constitutional requirement concerning the speaker’s own mental state.
Counterman v. Colorado and the Recklessness Standard
In Counterman v. Colorado, decided June 27, 2023, the United States Supreme Court held that the First Amendment requires proof of a subjective mental state in true-threat cases. It is not enough in a true-threat prosecution to rely exclusively on the fact that a reasonable person would view the communication as threatening.
The Court held that recklessness is sufficient for constitutional purposes. In this context, recklessness means the speaker consciously disregarded a substantial risk that the communication would be viewed as threatening violence.
That is an important distinction. The prosecution does not necessarily have to prove that the defendant’s specific goal was to frighten someone. But where the First Amendment true-threat doctrine applies, the government must prove at least that the defendant was aware of a substantial risk that the communication would be understood as a threat and consciously disregarded that risk.
Counterman involved repeated Facebook communications sent to a musician in Colorado. The communications became increasingly troubling, and the recipient changed aspects of her life because of fear. The Supreme Court did not decide that Counterman’s communications were protected speech. Instead, it reversed the judgment because Colorado had applied an objective standard without requiring sufficient proof of Counterman’s subjective mental state.
The case was sent back for further proceedings under the constitutional standard announced by the Court.
How Counterman Can Matter in a Tennessee Threat Case
When Tennessee prosecutes speech as a criminal threat, the First Amendment can place limits on how broadly the criminal statute may be applied. If the prosecution is based on an alleged true threat, Counterman requires the government to establish the constitutionally required subjective mental state.
Some Tennessee statutes already require intent or knowledge that may satisfy or exceed the constitutional minimum in many cases. For example, Tennessee’s current harassment-by-threat statute requires proof that the defendant intended the communication to be a threat of harm. Tennessee assault based on fear requires intentional or knowing conduct.
That does not make every threat prosecution simple. The defense may still dispute whether the communication was actually threatening, whether the alleged fear was reasonable, whether bodily injury appeared imminent, whether the defendant possessed the required mental state, or whether the statement was protected speech when considered in context.
Threats of Mass Violence in Tennessee
Tennessee also has a specific statute addressing threats of mass violence. Tennessee Code § 39-13-813 applies when a person knowingly communicates a threat to commit an act of mass violence and the threat causes another person to reasonably expect that the act will occur.
The statute defines mass violence as an act that a reasonable person would conclude could lead to the imminent serious bodily injury or death of four or more people. It applies to many forms of communication, including verbal statements, writing, text messages, social-media posts, email, voicemail, pictures, and other electronic communications.
The offense is generally a felony, and enhanced consequences can apply in circumstances identified by the statute, including certain threats involving schools, houses of worship, government property, live performances or events, repeat offenses, or substantial steps toward carrying out the threatened act.
Tennessee also has separate provisions dealing with certain threats involving school employees or students. Because several different statutes can potentially apply to threatening conduct, the exact charge matters.
What Evidence Is Used in a Threat Case?
Threat cases frequently depend on context. Evidence may include:
- Text messages, emails, or direct messages
- Social-media posts and comments
- Voicemails or recorded calls
- Body-camera or surveillance video
- Witness statements
- Prior communications between the parties
- The timing and location of the statement
- Whether the statement was conditional
- Conduct occurring before or after the statement
- The recipient’s response to the communication
- Evidence relating to whether the defendant had the apparent ability or opportunity to carry out the alleged threat
Context can cut both ways. A longer conversation may make a statement appear more serious than a single screenshot suggests, or it may show that language presented by itself was sarcasm, hyperbole, part of an argument, a quotation, or something else that materially changes its meaning.
What Should You Do if Police Contact You About an Alleged Threat?
If law enforcement contacts you about an alleged threat, avoid trying to talk your way out of the situation before understanding what evidence exists. Statements made during an interview can later be used as evidence, and attempts to explain a message may create additional problems if the explanation is incomplete or inconsistent.
Do not delete messages, social-media posts, call logs, photographs, or other potentially relevant evidence. Deleting material after learning of an investigation can destroy evidence that might have helped explain the context of the communication.
You should also avoid contacting the complaining witness to ask them to withdraw the allegation or explain what you meant. Depending on the circumstances, additional contact can worsen the situation, create new evidence, or violate a bond condition or order of protection.
If charges have already been filed, review all release conditions carefully and comply with them even if the other person initiates contact.
Possible Defenses in a Tennessee Threat Case
The appropriate defense depends on the charge and the evidence. Issues may include whether the defendant actually made the communication, whether the statement was altered or taken out of context, whether the prosecution can prove the required intent or knowledge, whether the alleged victim’s fear was reasonable, whether bodily injury appeared imminent, and whether the speech qualifies as a true threat under the First Amendment.
Digital-authentication issues can also matter. Screenshots may omit surrounding messages, accounts may be shared or compromised, and timestamps or metadata may become relevant to determining who sent a message and when.
In an assault case based on threatening words, the defense may focus on whether the prosecution can prove reasonable fear of imminent bodily injury. In a harassment case, the defense may focus on the purpose and meaning of the communication and whether the statutory intent requirements are met.
For more information about defending assault allegations, see our page on Tennessee assault charges.
- Jeremy Forgey
- Chris Griffin
Can Social Media Posts Lead to Criminal Charges?
Yes. A communication does not lose its potential legal significance simply because it was posted online rather than spoken face to face. Tennessee’s current statutes expressly recognize electronic communications in several contexts, and social-media evidence is routinely relevant to criminal investigations.
At the same time, the internet is full of exaggeration, jokes, song lyrics, political rhetoric, fictional language, memes, and angry statements. The First Amendment does not allow every disturbing online statement to be treated automatically as a criminal threat. Courts must still consider the applicable statute, context, and constitutional mental-state requirement.
Does Saying “I Didn’t Mean It” End the Case?
No. A defendant’s later statement that they did not mean to threaten anyone may be relevant, but it does not automatically resolve the legal issue. Intent and knowledge are often proven through circumstantial evidence rather than a direct admission.
Conversely, the fact that a recipient interpreted a communication as frightening does not automatically establish every element of a criminal offense. The prosecution still has to prove the statutory elements of the charged crime and comply with the First Amendment where the true-threat doctrine applies.
Threat Allegations Can Overlap With Other Criminal Charges
Threat allegations sometimes arise alongside domestic assault, stalking, harassment, weapons charges, violations of orders of protection, or other offenses. A statement that is relevant to one count may also become evidence in another part of the case.
That makes it important to evaluate the entire criminal case rather than focusing only on a single text or statement. Best And Brock represents people facing criminal charges in Chattanooga and Southeast Tennessee, including cases involving assault and other allegations based on threatening conduct.
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Talk With a Tennessee Criminal Defense Attorney
If you are being investigated or charged because of something you allegedly said, texted, posted, or communicated online, the precise wording and context can matter. So can the particular Tennessee statute the prosecution is using.
Garth Best and Matt Brock represent clients facing criminal charges in Tennessee and can review the communications, the surrounding circumstances, and the prosecution’s evidence.
Contact Best And Brock or call (423) 829-1043 to schedule a consultation.
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