The Cost of Confusion: Amending the True Threats Doctrine in a Post-Counterman World
A threat does not need to be carried out to cause harm. Even in the absence of physical violence, threats inflict psychological damage, suppress speech, and disrupt lives: A political leader’s call for violent retribution can chill dissent and endanger targets [1]; a company executive’s warning that employees who speak to regulators “won’t have a future here” deters whistleblowing [2]; a police officer telling a journalist to “watch their back” after critical reporting creates unconstitutional intimidation [3]; a stalker’s persistent threats to a victim can erode their sense of safety and autonomy, regardless of whether they ever makes physical contact [4]. Courts have long struggled to determine when speech crosses the line from protected expression to an unprotected true threat.Though the Supreme Court recognized in Virginia v. Black (2003) that true threats lie outside First Amendment protection [5], it has failed to provide lower courts with a structured framework for distinguishing true threats from political hyperbole, artistic expression, or rhetorical excess. This failure has led to doctrinal inconsistency and arbitrary enforcement, as evidenced by Counterman v. Colorado (2023), where the Court’s attempt to clarify the standard for true threats instead highlighted the ongoing uncertainty. In this article, I argue that without a clear framework lower courts risk chilling protected speech, enabling selective enforcement, and fostering unpredictable legal outcomes—consequences that undermine both free expression and the fair administration of justice.
Counterman contributed to the ongoing doctrinal confusion in true threat jurisprudence by replacing the long-standing objective standard with a subjective recklessness test. Under the objective standard, used by many lower courts prior to Counterman, a statement qualified as a true threat if a reasonable person, considering the context, would interpret it as such, regardless of the speaker’s intent. In Counterman, however, the Court held that a speaker must be subjectively aware of a substantial risk that their words would be perceived as threatening and recklessly disregard that risk [6]. By shifting the focus from how a reasonable person would interpret speech to the speaker’s internal state of mind, Counterman has made it harder for courts to consistently apply the true threats doctrine, increasing uncertainty in both legal outcomes and enforcement. The shift, while intended to prevent the overcriminalization of speech, imposes an unrealistic evidentiary burden. Unlike an objective framework, which allows courts to evaluate speech based on its content, circumstances and effect, the Counterman test requires courts to infer a speaker’s internal state of mind—an impossible task in most cases. This problem is particularly acute in online speech, where tone, audience, and intent are often ambiguous. A defendant who posts violent rhetoric on social media can later claim they did not mean it seriously, forcing prosecutors to disprove an inherently unprovable assertion [7].
More troublingly, Counterman fails to address the deeper issue: the absence of a structured methodology for analyzing context in true threats cases. While the Court has acknowledged that context matters, it has never defined how courts should assess it. This omission has resulted in courts applying inconsistent and often arbitrary reasoning, as exemplified in Commonwealth v. Knox (2018). In Knox, the Pennsylvania Supreme Court upheld the conviction of a young Black rapper for terroristic threats based on lyrics that criticized the police [8]. Although the lyrics contained violent language—“Let’s kill these cops cause they don’t do us no good”—they were part of a well-established genre that frequently employs hyperbole and violent imagery as a form of social commentary. While some might argue that listeners could interpret the lyrics as literal threats, the absence of a clear legal standard for assessing context allowed the court to overlook the artistic and cultural significance of the genre, leading to a decision that risked criminalizing protected speech. The court, however, relied heavily on law enforcement’s interpretation of the lyrics rather than engaging in a rigorous contextual analysis. This approach not only disregarded expert testimony explaining the literary and cultural function of rap music but also allowed the subjective reaction of the alleged victims to dictate the legal outcome [9]. While not all speech warrants such scrutiny, when the line between artistic expression and criminal threat is unclear, courts ought to heavily assess contextual factors in order to avoid criminalizing protected speech.
The Court’s earlier decisions in Watts v. United States (1969) and Virginia v. Black signaled the need for a contextual approach but failed to provide meaningful guidance. Watts overturned a conviction for threatening the president, finding that the defendant’s statement that “[i]f they ever make me carry a rifle, the first man I want to get in my sights is [Lyndon B. Johnson]” was political hyperbole rather than a true threat [10]. The Court cited three contextual factors: the political nature of the statement, its conditional phrasing, and audience reaction (laughter), yet still provided no instructions on how to weigh these factors or apply them in future cases. Black reaffirmed the importance of context by striking down a Virginia statute criminalizing cross-burning that presumed intent to intimidate. The Court emphasized that some instances of cross-burning might be true threats while others could be political speech or even symbolic expression [11]. However, the decision again failed to articulate a clear methodology for evaluating context. The result has been a patchwork of lower court decisions applying different criteria with little consistency.
The persistent judicial inconsistency in evaluating true threats has created doctrinal incongruence, undermining both free speech protections and the fair administration of justice, and evidencing a clear need for the Court to reform their subjective review standard. To resolve this doctrinal instability, courts should adopt a structured test modeled on the Ollman v. Evans (1985) defamation law framework, which distinguishes statements of fact from opinion. In Ollman, the D.C. Circuit outlined a four-part test for determining whether a statement should be interpreted as a factual assertion or protected opinion: (1) the specificity of the statement, (2) its verifiability, (3) its linguistic and literary context, and (4) the broader social and political context [12]. A similar test would provide courts with a consistent, principled approach to true threats analysis, reducing arbitrary decision-making and ensuring that speech is neither overcriminalized nor left unregulated when it presents real harm.
First, courts should assess the specificity of the threat. Language that is vague, conditional, or open to multiple interpretations should be less likely to qualify as a true threat. In Watts, for example, the statement at issue was phrased conditionally, making it distinguishable from a direct declaration of intent to commit violence [13]. In contrast, explicit threats with clear, immediate and unequivocal language, such as 'I will kill you tomorrow' in Knox, should weigh more heavily toward a true threat finding. This assessment aligns with the broader legal doctrine that distinguishes true threats from incitement to crime. While incitement requires both intent and a likelihood of producing imminent unlawful action, true threats involve direct expressions of intent to harm. Creating a distinction with regard to specificity ensures that speech directly encouraging violence is not constitutionally protected. Second, courts should evaluate the feasibility of carrying out the threat. In defamation law, verifiability refers to whether a statement can be objectively proven true or false; in the context of true threats, a comparable inquiry would assess whether the threat is realistically capable of being executed. If a speaker has the means and opportunity to carry out the threat, it should be taken more seriously [14]. Conversely, an obviously implausible threat—such as a claim of supernatural assassination—should weigh against a true threat classification. Third, courts should consider the linguistic and literary context in which the statement appears. This factor is particularly crucial in cases involving artistic expression. Returning to the Knox example, the lyrics at issue were part of a rap song, a genre known for its use of violent imagery as a form of metaphor and social critique [15]. Just as courts in defamation cases assess whether a statement appears in an opinion column or a news article, courts in true threats cases should differentiate between literal threats and artistic or rhetorical expression. Finally, courts should examine the broader social and political context of the speech. In Watts, the Court acknowledged that political rhetoric often includes aggressive language that should not be taken literally [16]. Similarly, in digital speech cases, courts must recognize that online communication is often informal, exaggerated, and prone to misinterpretation. A structured test would require courts to consider whether the speech occurred in an environment where hyperbole is common, such as social media, protest settings, or entertainment.
By implementing this four-part test, courts would ensure a more consistent and principled approach to true threats jurisprudence. This framework would prevent arbitrary judicial decision-making, provide clearer guidance for litigants, and strike a balance between protecting free speech and addressing the harms caused by true threats. Without a structured approach, courts risk relying on subjective interpretations, leading to inconsistent rulings and penalties. This unpredictability undermines both fairness and the integrity of First Amendment protections. By adopting a clear and principled test, courts can ensure that true threats are properly distinguished from protected speech, reducing the risk of unjust or overly punitive outcomes. The alternative—continuing to rely on the unstructured reasoning that has characterized true threats doctrine for decades—will only perpetuate confusion, judicial inconsistency, and the erosion of both speech rights and public safety. The Supreme Court has repeatedly acknowledged that context is critical in true threats analysis; it is now time for the judiciary to define how that context should be evaluated. Without dedicated reform, the cost of confusion in interpreting the new scope of digital threats will be far too high.
Bibliography
[1] Brandenburg v. Ohio, 395 U.S. 444 (1969)
[2] NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)
[3] Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)
[4] Counterman v. Colorado, 600 U.S. 66 (2023)
[5] Virginia v. Black, 538 U.S. 343, 359 (2003)
[6] 600 U.S. 66 (2023)
[7] See, e.g., United States v. Bagdasarian, 652 F.3d 1113, 1122 (9th Cir. 2011), finding no true threat where online posts targeting then-candidate Barack Obama were ambiguous
[8] Commonwealth v. Knox, 190 A.3d 1146 (Pa. 2018)
[9] Ibid.
[10] Watts v. United States, 394 U.S. 705 (1969)
[11] 538 U.S. 343, 359 (2003)
[12] Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984)
[13] 394 U.S. 705 (1969)
[14] See, e.g., United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996), considering whether the speaker had a history of violence or access to weapons
[15] 190 A.3d 1146 (Pa. 2018)
[16] 394 U.S. 705 (1969)