When is a Threat "Truly" a Threat Lacking First Amendment Protection?
A Proposed True Threats Test to Safeguard Free Speech Rights in the Age of the Internet

Various federal and state statutes prohibit the communication of threats. The first step in enforcing these statutes is to determine whether a person's speech actually amounts to a "true" threat.(1) True threats are not protected by the First Amendment and can thus be prohibited without violating the United States Constitution. The Circuit Courts of Appeal, however, are divided on the appropriate test for determining when speech becomes a threat. The majority follow one of two objective tests. The United States Supreme Court has taken two cases involving true threats, and while it indicated in dicta that a purely objective test might not be appropriate, in neither case did it delineate a test.(2) Though almost 25 years have passed since the later of these cases, the Supreme Court has not taken another true threats case.

The recent rise of the Internet, however, may give the true threats doctrine new life. The expansion of the Internet and cyberspace in the last few years has been phenomenal. The Internet is a communications medium through which any individual with access can communicate almost instantaneously with other individuals, as well as with a world-wide audience, and can research, discuss, respond to, or express opinions on almost any subject imaginable.

The Internet thus functions as a vast marketplace of ideas, and as such, it is of utmost importance that it receive the highest level of First Amendment freedom of speech protection possible. However, the Internet also presents a huge potential for abuse. One form of abuse is the use of the Internet to threaten individuals in ways that were previously impossible. Two recent cases - United States v. Alkhabaz (the "Baker case") (3) and Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists (the "Nuremberg Files case") (4) - illustrate the potential of the Internet as a medium through which to transmit threats. The Baker case involved e-mail messages and the Nuremberg Files case included a website. While true threats can and should be prohibited, the objective tests currently followed by a majority of courts are not the most highly protective tests when it comes to free speech rights.

Given the unique nature of the Internet and the importance of protecting First Amendment free speech rights in cyberspace, this paper will propose a threats test that better balances free speech concerns with the prohibition of threats and the protection of potential victims. Under this proposed test, speech amounts to a true threat if: 1) a reasonable person hearing the speech would perceive the speech as a threat to identifiable individuals or entities, in light of relevant factual context, and 2) the speaker intended the speech to be taken as a threat, regardless of whether the speaker intended to actually carry out the threat.

Part I of this paper will describe the unique nature of the Internet and cyberspace and will discuss the need for a standard that is highly protective of free speech rights. Part II will discuss the true threats doctrine as applied by the Second and Ninth Circuit Courts of Appeals, which represent the majority tests, and as applied in the recent Baker and Nuremberg Files cases. Part III will discuss the test proposed above and its legal implications, and Part IV will discuss policy issues surrounding the proposed test. Finally, this paper will conclude that this test should be adopted by United States courts in place of the tests currently used, as it is strikes the best balance between the protection of free speech, in both cyberspace and in the real world, and the prohibition of true threats.

In the last few years, the growth of the Internet and of cyberspace has been phenomenal. This amazing growth has led some to hail the Internet as a powerful marketplace of ideas where freedom of speech should be protected at all costs, while at the same time leading others to decry the Internet as a dangerous communications medium in need of regulation.(5) While this debate about the nature of the Internet may continue in academic and other circles, the United States Supreme Court, in Reno v. American Civil Liberties Union, has made it clear that it regards the Internet as "a unique and wholly new medium of worldwide human communication", to which full First Amendment protection, and no lesser standard, applies.(6)

Additionally, the Supreme Court in Reno acknowledged that legal findings about the nature of the Internet are important to the resolution of legal issues arising in the context of the Internet.(7) For those unfamiliar with the nature of the Internet, the Internet is, as the Supreme Court explained, an international network of computers that provides a "wide variety of communication and information retrieval methods" to all those with access to the Internet. These methods include electronic mail, automatic mailing list services, newsgroups, chatrooms, and the World Wide Web, which together make up "a unique medium - known to its users as 'cyberspace' - located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet."(8)

The Supreme Court also acknowledged the Internet as a "new marketplace of ideas."(9) Certain characteristics of the Internet make it an ideal marketplace of ideas. As Judge Dazell, a member of the District Court in the Reno case explained, the Internet presents low barriers to entry, which are identical for both speakers and listeners, and thus result in "astoundingly diverse content" being available on the Internet.(10) Essentially, any individual with access to the Internet can publish their own ideas and content, with no further economic barriers and subject to no editorial control but their own. Further, individuals with controversial ideas are far more likely to find "friendly forums" on the Internet than they would in their own communities, and thus are far more likely to air their ideas in cyberspace than they would be to air them in "real" space.(11)

These characteristics, however, also make it easy for people to abuse the Internet. The form of abuse that this paper addresses is threats. People may use e-mail, postings to newsgroups and bulletin boards, chat rooms, web pages, or any combination of these to send threats to others. The Internet thus makes it easier for individuals or organizations to threaten individuals with whom they have personal, political, or other differences.(12) Such threats are not only harmful to their victims, but are harmful to freedom of speech in cyberspace, as individuals fearing retaliation may cease to express their opinions or even enter the forum at all.

Threats are prohibited by various statutes. For example, 18 U.S.C. §875(c) is a federal statute that prohibits the transmission of threats through interstate commerce, (13) and which can be used to prohibit the transmission of threats through the Internet.(14) Additionally, many states have their own anti-harassment and anti-threat statutes, which may be similarly used.(15) A problem arises under many of these statutes, however, in determining when speech amounts to a true threat. As will be discussed below, the majority of courts follow an objective test that is not as protective of free speech rights as it could be.

While there is clearly a need to prohibit threats, it is also important not to chill free speech in cyberspace by too broadly defining what speech equals a "threat". As the District Court in Reno found, "the content on the Internet is as diverse as human thought."(16) In the interest of keeping such diversity alive in cyberspace, a more balanced threats test than those currently followed should be developed, such that freedom of speech rights on the Internet receive the fullest First Amendment protection possible. This paper will propose such a test.

True threats are a category of speech that is not protected by the First Amendment. Currently, there is no one test to determine when speech crosses the boundary from protected expression to a "true" threat. The United States Supreme Court has not definitively answered the question and the Circuit Courts of Appeal have formulated different tests, though the majority favor some form of objective test. This section will first discuss various ways to formulate a true threats test. It will then analyze two United States Supreme Court opinions involving the true threats test, and will look at the tests of the Second and Ninth circuits. Finally, it will analyze the recent Baker case in the Sixth Circuit and the Nuremberg Files case in the Ninth Circuit to see how these cases address the true threats test in a cyberspace context.

Courts over the years have included various elements in their formulations of threats tests. The majority of courts use an "objective" construction. Essentially, an objective test asks whether a reasonable person would construe the defendant's speech or statement as a threat, given the context in which it was made. The point at which courts differ is in deciding who that reasonable person should be. There are three possibilities. The first is to ask whether a reasonable hearer of the statement who was not the intended target would interpret the statement as a threat. The second is to ask whether a reasonable speaker should have foreseen that his statement would be interpreted as a threat. The third is to ask whether a reasonable recipient of the statement would interpret it as a threat. It should be noted that the reasonable hearer and reasonable recipient standards may be confused, as the hearer is often but not necessarily the recipient. Additionally, the reasonable recipient standard is problematic because it invites a jury to consider the unique sensitivities of the particular recipient, whether or not they are supposed to do so; if this happens and the recipient is unusually sensitive, a defendant's speech may be prohibited in that instance, while it would not have been prohibited if it had been directed at a less sensitive recipient.(17)

A few courts have required both an "objective" and a "subjective" element. A subjective element essentially looks at the speaker's intent in making the statement. Some courts ask whether the speaker intended to threaten, regardless of intent to carry out the threat. Another approach is to ask whether the speaker intended to execute the threat, though this is rarely done as part of the threats test. Confusion over an intent inquiry is amplified by the fact that many statutes include language requiring the speaker to "willfully" or "knowingly" or "intentionally" threaten. This language seems to require specific intent but is ambiguous.(18) The majority of courts do not interpret this as requiring specific intent to actually threaten, but instead view it objectively, asking only whether the speaker voluntarily uttered his speech and whether the speaker knew the meaning of his words.(19)

While this may all seem relatively unimportant, the formulation of the threats test is relevant to the burden of proof facing the prosecution. Adding a subjective element to the test increases the burden on the prosecution, and thus makes it less likely that speech that is not truly a threat will be attacked for the sole purpose of silencing the speaker. A test that allows for easy prosecution, on the other hand, might have a chilling effect on speech such as extreme political speech, and might lead to greater abuses than a narrower test. Additionally, a test requiring a higher burden of proof on the plaintiff shows that the policy of our courts is to stand behind the Constitution and uphold the First Amendment right to free speech. A lax test, however, calls into question our commitment to allowing all to speak their minds and is more reminiscent of the days of the Alien and Sedition Laws, where people were prosecuted for thoughts alone.(20)

Finally, it is worth noting that the policy behind prohibiting threats is not just to prevent the harm that would come from their actual execution. The goal is also to prevent harm that comes from the mere threat itself, such as the anxiety and fear that are created by a threat of harm, and the expense that goes into additional safety precautions taken to prevent the threatened action from occurring.(21) Thus, anti-threat statutes are aimed not only at statements where a defendant actually intends to carry out the threat, but also at statements where the defendant's sole intent is to convey a threatening message for the pure sake of frightening the intended recipient.

The Supreme Court first addressed true threats in Watts v. United States.(22) In Watts, the defendant had been convicted under 18 U.S.C. §871(a) of "knowingly and willfully" making a "threat" against the life of the President of the United States. In the context of a political debate held during a public rally on the Washington Monument grounds, the defendant had said:

After the defendant said this, the crowd laughed. The Supreme Court reversed the defendant's conviction, holding that defendant's statement was political hyperbole that did not rise to the level of a threat.(24) Because the Supreme Court did not find a true threat, it did not reach the issue of the appropriate test for true threats. However, in dicta, the Court expressed concerns about the objective rule followed by the majority of courts at the time.

The Court noted that the judges in the Court of Appeals below disagreed over whether the "willfulness" language of 18 U.S.C. §871(a) meant that a defendant must intend to actually carry out his threat. The Court further noted that the majority of the Court of Appeals below "seemed to agree" with prior cases that held the willfulness requirement was met if the speaker voluntarily made the statement with " 'an apparent determination to carry [it] into execution' ".(25) Under this version of the objective test, derived from Ragansky, no actual intent to carry out the threat is required; all that is needed is the defendant know what the statement means and say it voluntarily. While the Supreme Court did not explicitly overrule this formulation of the true threats test, it clearly was suspicious of it, stating "[p]erhaps this interpretation is correct, although we have grave doubts about it."(26) The court then referred to the dissenting opinion of Judge Skelly Wright below, in which Wright also expressed grave doubts about the majority's approach and presented his own approach.

Wright believed that the majority of the Court of Appeals had interpreted 18 U.S.C. §871(a) too broadly and in a way that did not appropriately protect freedom of speech. Wright noted that political statements that were protected by the First Amendment might either contribute to a climate of hate that would make the movement of the President dangerous or might, by implication or through hyperbole, "compass the violent end of the Chief Executive".(27) However, the threat of punishment for all such statements could "exert a chilling effect on political speech too drastic to be consistent with the guarantee of free expression."(28) Thus, Wright felt that the statute clearly required a specific intent element, and proposed a two-prong test that he felt would better address First Amendment concerns. Wright proposed that a statement is a threat if: 1) the defendant makes an alleged threat with specific intent to execute it, and 2) in the context and circumstances, the statement unambiguously constitutes a threat.(29) In explaining this formulation, Wright noted that there has consistently been a strict requirement of specific intent in criminal cases "impinging upon protected speech".(30)

That the Supreme Court in Watts disapproved of the majority objective test and pointed to Wright's dissent does not necessarily mean that the Supreme Court intended to adopt Wright's test. However, it does indicate that the Supreme Court recognized Wright's legitimate concerns that freedom of speech required greater First Amendment protection than the majority's purely objective test could provide.

The next Supreme Court case to address the issue of which true threats test should apply was Rogers v. United States.(31) Rogers also involved a defendant who had been convicted under 18 U.S.C. §871(a) for making threats against the life of the President. Defendant Rogers was an unemployed carpenter with a 10-year history of alcoholism, who wandered into the coffee shop of a Holiday Inn, misbehaving in a loud manner. He told waitresses and customers that he was Jesus Christ, was opposed to Nixon's visiting China, and that he was going to go to Washington to "whip Nixon's ass" or to "kill him in order to save the United States". Additionally, he told the arresting officer that he would walk to Washington (from Louisiana) because he did not have a car. (32)

The Supreme Court granted certiorari intending with Rogers to resolve the "apparent conflict among the Courts of Appeals concerning the elements" of a true threat.(33) However, the Court found that the trial court had committed prejudicial error in its communications with the jury, and thus reversed the conviction on that ground without ever reaching the very issue it had taken the case to resolve.(34) While the majority failed to comment on an appropriate test even in dicta, Justice Marshall was joined by Justice Douglas in a concurring opinion that did discuss the issue of the true threats test.

Marshall noted that the lower courts in the case had followed the objective test that originated with Ragansky.(35) Marshall felt this objective test construed 18 U.S.C. §871(a) too broadly and amounted to a negligence standard, and he warned that the Court should be wary of such a test given that 18 U.S.C. §871(a) is a criminal statute regulating pure speech. Marshall further reasoned that the statute would only have a deterrent effect on statements that were intended to convey a threat, and that under an objective construction of the statute, this would only work if those criticizing the President "are careful to give a wide berth to any comment that might be construed as threatening in nature."(36) Marshall concluded that this degree of deterrence would have "substantial costs in discouraging the 'uninhibited, robust, and wide-open' debate that the First Amendment is intended to protect."(37) Thus, Marshall proposed that the Court adopt a narrower threats test, which would require proof, in light of the circumstances under which the statement was made, that: 1) the defendant intended that his statement be taken as a threat, even if the defendant had no intent of actually carrying out the threat; and 2) the statement made was in fact threatening.(38)

It should be noted that the test proposed by Marshall differs from that proposed by the dissent in the Watts Court of Appeals, in that Marshall does not require that the defendant intend to actually carry out the threat. Instead, the defendant need only intend to threaten. Nevertheless, Marshall's test is in line with the Supreme Court's dicta in Watts, in that it is not a purely objective test like that followed by the majority. Thus, both Watts and Rogers indicate that the Supreme Court is likely to favor a threats test that includes a subjective intent element over a purely objective test. The test this paper proposes is similar to that proposed by Marshall in his Rogers concurrence, as it also requires that the speaker subjectively intend to threaten.

The majority of the Circuit Courts of Appeal follow an objective form of the true threats test. Two distinct lines of cases are often cited - the Kelner line of cases in the Second Circuit and the Roy line of cases in the Ninth Circuit. Each of these will be discussed below.

In United States v. Kelner, the Second Circuit Court of Appeals affirmed the defendant's conviction under 18 U.S.C. §875(c) for transmitting threats in interstate commerce.(39) Defendant, a member of the Jewish Defense League ("JDL") told a reporter in a televised interview that the JDL had a plan to assassinate Yasser Arafat, who was in the United States that day.(40) In discussing when speech constitutes a true threat, the Court stated that speech is threat when, under the circumstances and on its face, it is "so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution".(41) In upholding the defendant's conviction, the Court noted that under the statute, the government did not have to prove that the defendant has a specific intent or a present ability to actually carry out the threat.(42) The Court further stated that it is "the utterance" of the threat that is made criminal by the statutes, and not the specific intent to carry out the threat.(43)

This test is purely objective. However, it differs from a typical reasonable person test in that it requires that the threat be "unequivocal, unconditional, immediate and specific". Such language requires an immediate and imminent threat, and thus is a narrower test than one that merely asks whether a reasonable person would perceive the defendant's statement as a threat.

As such, the Kelner test can be viewed as more protective of freedom of speech than a typical objective test, such as that followed by the Ninth Circuit (to be discussed below). However, it still lacks the level of protection that can be provided by adding a subjective element to the threats test.

In Roy v. United States, the Ninth Circuit Court of Appeals upheld the defendant's conviction under 18 U.S.C. §871(a) for threatening the life of the President.(44) The defendant had called a telephone operator from a pay phone at a marine base and told her that the President, who was due to arrive the next day, should not come or he would be killed. The defendant claimed to have called the operator back and told her it was a joke, which she claimed not to have heard.(45)

The Court followed a three-prong test in evaluating 18 U.S.C. §871(a)'s "willfulness" requirement. Under this test, speech is a threat if: 1) the defendant intentionally makes a statement, whether written or oral; 2) the statement is made in a context or under such circumstances that a reasonable person would foresee that the statement would be interpreted by those to whom it was communicated as a serious expression of intent to inflict harm; and 3) the statement is not the result of mistake, duress or coercion.(46) While the Court noted that the defendant's claim that the statement was a joke might be relevant to context, the Court held that the statement would still create apprehension in a reasonable listener and that the evidence was sufficient to support a guilty finding under the statute.(47)

In reaching its holding, the Court did not engage in a discussion of free speech rights; since the defendant did not claim an infringement of his First Amendment rights, the Court concluded that there did "not appear to be a free speech issue" in the case.(48) In its reasoning in setting out the three-prong test described above, however, the Court did note that the Supreme Court in Watts had expressed doubt over the objective interpretation of the statute's "willfulness" requirement. The Court went on, however, to essentially follow the objective interpretation.

Subsequent Ninth Circuit cases have consistently followed the Roy court's test.(49) Most, however, tend to focus on the second element of the test, asking whether, in light of the context, a reasonable speaker would foresee that his statement would be interpreted by those to whom it is communicated as a serious expression of intent to inflict harm. This test, now known as the Ninth Circuit's "objective, speaker-based" test, is not the most protective of free speech rights. This is not surprising, given that it was developed in a case that purported not to consider First Amendment concerns. However, later cases that have discussed this test in light of the First Amendment have routinely held that it is sufficient to protect freedom of speech. This paper rejects the Ninth Circuit's objective, speaker-based test as too broad.

In United States v. Alkhabaz (the "Baker case"), the Sixth Circuit Court of Appeals affirmed the District Court's quashing of an indictment, under 18 U.S.C. §875(c), that charged Jake Baker with transmitting threats to injure or kidnap another through electronic mail ("e-mail") messages transmitted through the Internet.(50) Baker had posted a fictional story to a newsgroup that described the kidnapping, torture, and murder of a woman to whom Baker gave the same name as one of his female classmates. This story led to an investigation, in which private e-mail messages between Baker and Arthur Gonda, whose true identity and whereabouts were never discovered, were uncovered. In the e-mail messages, Baker and Gonda discussed their shared interest in sexual abuse and torture of women and young girls.(51) The government argued that these messages represented an evolution from shared fantasies into a "firm plan" to kidnap, rape, and murder a female person, and as such were "threats" transmitted in interstate commerce and prohibited under 18 U.S.C. §875(c).(52) The District Court, however, dismissed this indictment, and the Court of Appeals reviewed the decision de novo.

In dismissing the indictment, the District Court used different reasoning than the Appellate Court would later use. First, the District Court held that the Kelner test applied in the Sixth Circuit.(53) The Court then noted that the e-mails were private and there was nothing in them to suggest that they would be distributed any further; thus, the Court looked to how a reasonable person would expect Gonda to interpret the e-mail. In determining this, the Court first noted that Gonda could have been anyone, so nothing could be assumed about Gonda's identity, and the Court then reasoned that in light of Gonda's responses, Gonda was likely not intimidated by the e-mail from Baker.(54) Finally, the Court noted that there was no specifically identifiable victim and thus no unequivocal, unconditional and specific expression of intent to harm someone. Looking at all of this, the Court concluded that there was not enough evidence for prosecution under 18 U.S.C. §875(c).

The Court of Appeals affirmed the District Court's holding that the e-mail messages did not constitute a true threat, and thus were protected speech. However, in reaching this holding, the Court of Appeals reviewed the case de novo, and created a novel two-prong test for determining when speech is a threat. Under this new test, speech is an unprotected threat if a reasonable person would: 1) take the statement as a serious expression of an intention to inflict bodily harm, and 2) perceive such expression as being communicated to effect some change or achieve some goal through intimidation.(55) The Court emphasized that the second prong of this test does not create a subjective standard, but instead must be "determined objectively, from the perspective of the receiver."(56)

In creating this test, the Court described threats as tools that people use to achieve some goal through intimidation, whether that goal is extortionate, coercive, political, or something seemingly innocuous that is done as a prank. The Court stated that the core purpose of a threat is the intent to achieve a goal through intimidation, and reasoned that because of this, a communication objectively indicating an intent to harm cannot be a threat unless it is also conveyed for the purpose of furthering a goal through intimidation. Further, the Court noted that the intent of Congress was to forbid only those communications in fact constituting a "threat". Thus, the Court felt that in order to best achieve the intent of Congress in passing 18 U.S.C. §875(c), it was necessary to add a second prong to the threats test, requiring that the expression be perceived as communicated to achieve some goal through intimidation, as this was part of the meaning of a "threat".(57)

Circuit Judge Krupansky, however, vigorously dissented from the majority's opinion. Krupansky felt that the majority was altering the plain meaning of 18 U.S.C. §875(c) and ignoring prevailing precedents by "judicially legislating an exogenous element" into the statute.(58) The appropriate test for Krupansky would be whether, in the context of the statement, a reasonable recipient would believe that the speaker was serious about carrying out his alleged threat, regardless of the speaker's actual motive.(59) Krupansky stressed that this test was in line with Sixth Circuit precedent, while both the majority's novel test and the District Court's use of the Kelner test were not.(60)

In a recent law review article, Robert Kurman Kelner analyzed the Baker case as it pertains to the true threats test.(61) Kelner pointed out that if Congress's intent in passing the statute was merely to prevent possible violence, then the Sixth Circuit's test is not compelled by the statute. In discussing why the Sixth Circuit Court of Appeals defined a "threat" in a way not compelled by the statute, Kelner suggested that the court was attempting to move closer to a speech protective rule without explicitly saying that it was doing so. Kelner also suggested that the Baker case itself is an example of prosecutorial overreaching that is likely to become more prevalent and is in fact encouraged by broadly worded statutes such as 18 U.S.C. §875(c).

One thing is clear - the Baker case illustrates that the true threats test is a clearly unresolved area. If Kelner's suggestion is correct and the Sixth Circuit was trying to create a more speech-protective test, then the second prong (that the speech be reasonably perceived as communicated in order to achieve a goal through intimidation) seems an awkward way of doing this. With this requirement, the Sixth Circuit is essentially looking at the speaker's intent in making the alleged threat, which is a subjective element. However, the Sixth Circuit is trying to keep the test objective, and thus asks whether a recipient would think this is the speaker's intention. It seems that the test would be clearer if this inquiry were simply phrased subjectively.

Despite its use of a novel and awkward threats test, the Sixth Circuit ultimately reaches the right result. The case does indeed seem to involve prosecutorial overreaching, as private e-mail kept between two people is normally never going to reach the rest of the public and it is thus highly unlikely that it is intended by its authors to threaten a third person.(62) The fact that both the District Court and the Sixth Circuit Court of Appeals dismissed the indictments against Baker illustrates that courts are willing to recognize the need to protect free speech rights in cyberspace. However, they need an appropriate test that will allow them to spend more time on the merits of each new case.

In Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists (the "Nuremberg Files case"), the District Court held that there was a factual issue as to whether particular anti-abortion posters and an anti-abortion web site were "true threats"; thus, summary judgment was withheld as to these items and the case went to a jury trial.(63) At trial, the jury found that the posters and web site did in fact constitute true threats, and they awarded the plaintiffs a $109 million verdict.(64) This is the first case involving a website and the true threats test. It is likely to be appealed, and if it makes its way to the Supreme Court, the issue of the appropriate true threats test might finally be addressed.

The facts are as follows. The plaintiffs were clinics and individual physicians who provide abortions, and the defendants were anti-abortion organizations and individuals who advocated violence to stop abortions from occurring. The plaintiffs alleged that the defendants had engaged in a "campaign of terror and intimidation" against them, and that defendants' statements in particular posters, a web site, and a bumper sticker, when viewed in the context of the defendants' past violence against abortion providers, constituted "true threats" against the plaintiffs, actionable under the Freedom of Access to Clinic Entrances Act of 1994 ("FACE"), 18 U.S.C. §248.(65) While the court found that the bumper sticker was too general to be actionable, it held that a factual issue existed as to whether three documents were true threats.(66) The first document was a "Deadly Dozen" poster with the heading "Guilty of Crimes Against Humanity", a statement about abortion prosecuted as a "war crime" in the Nuremberg trials of 1945-46, and a list of 12 abortionists, including addresses and phone numbers. The second was the "Crist Poster", which had a similar heading and included a photograph of plaintiff Crist as well as his home and work addresses. The third was the "Nuremberg Files", a website that appeared on the Internet in January of 1997 and listed the names and personal information of abortionists, as well as the names of clinic workers and other abortion supporters. In the past, several abortion doctors had been killed after similar posters naming them had been distributed, and the FBI had contacted named doctors offering protection and suggesting the use of bullet proof vests.(67)

Before analyzing these documents, the Court discussed the appropriate test to determine when speech is a true threat. While the plaintiffs had proposed that the Court follow the Ninth Circuit's objective, speaker-based test, the defendants and the amicus curiae had each proposed different tests. Defendants had used the narrower Kelner standard to argue that on a facial challenge, plaintiffs' claims should be dismissed because there were no apparent threats in the statements at issue.(68) The Court, however, held that Kelner was not controlling in the Ninth Circuit.(69)

The American Civil Liberties Union ("ACLU") as amicus curiae, proposed that the Court follow a different test, not currently followed by any circuits, but which they argued would be more protective of First Amendment free speech rights.(70) The ACLU's test has both an objective, listener-based component, and a subjective, speaker-based component. It would require the plaintiffs to prove that: 1) in light of its relevant factual context, a reasonable listener (or recipient of the communication) would interpret the statement as communicating a serious expression of an intent to inflict or cause serious harm to the listener, i.e. a reasonable person would perceive the statement as a threat; and 2) the speaker intended that the communication be taken as a threat to inflict or cause serious harm to the listener, thereby intending to place the listener in fear for his or her safety, regardless of whether the speaker actually intended to carry out the threat.(71) While the Court acknowledged the ACLU's concern over holding speakers liable for speech that is jest or political hyperbole, even extreme political hyperbole, and not an actionable threat, the Court felt that the Ninth Circuit's objective, speaker-based test was sufficient to allow for this distinction.(72)

Though the Court rejected the ACLU's proposal, the Court did make clear that an alleged threat does not have to be explicit on its face, but can be inferred from looking at the context in which it was made.(73) This is particularly important to the prosecution of threats made in cyberspace, as they may be made through various methods of expression that imply a threat, but never explicitly state the threat.

Additionally, it is worth noting that while the Court explicitly rejected the ACLU's proposal, Justice Jones later issued an Amended Order and Permanent Injunction in which he stated in a footnote that for purposes of his Order, he considered a person to make a "true threat" when:

This definition of a true threat is actually in accordance with what the ACLU suggested. It is interesting that while the Ninth Circuit insists that it should follow Roy, it can yet add a subjective element to the objective test in an injunction order.(75) This may indicate that in future Internet threat cases, the Ninth Circuit could be persuaded to move away from the Roy test and consider a more speech protective test such as that proposed in this paper.

As Part II illustrates, there is no consensus on which test should be used to determine when speech amounts to a true threat that can be constitutionally proscribed. The Kelner test is the rule in the Second Circuit, while the Ninth Circuit follows an objective, speaker-based test developed in Roy. The test in the Sixth Circuit is unclear, as the Sixth Circuit Court of Appeals recently created a novel test in the Baker case. The Supreme Court in Watts suggested that it has grave doubts about a purely objective test styled after Ragansky, but when it took Rogers specifically to resolve the issue, it failed to reach the issue at all. Marshall, however, wrote a concurring opinion in Rogers that suggested that a subjective element be added to the test - that the defendant intended to threaten. The ACLU, as amicus curiae in Planned Parenthood, similarly suggested that a subjective element of intent to threaten be added to the test.

There is clearly a need to balance freedom of speech with the prohibition of true threats, particularly in light of the rise of the Internet as a new communications medium through which to send threats. I propose that the following test will best strike this balance. A defendant should be held liable for making a threat if the plaintiff or prosecution proves that: 1) a reasonable person hearing the speech would perceive the speech as a threat to identifiable individuals or entities, in light of the relevant factual context, and 2) the speaker intended the speech to be taken as a threat, regardless of whether the speaker intended to actually carry the threat out.

This test incorporates an objective, hearer-based element, and a subjective, speaker-based element. The objective element should not be phrased in terms of a reasonable "recipient", however. While the hearer may well be the recipient, the hearer can also be a third person who has been informed of the factual context and the defendant's speech; thus the term "hearer" or even "listener" will encompass more reasonable persons than does the term "recipient". The danger in using the term "reasonable recipient" is that a jury will not objectively judge the statement in its context, but will instead look at the particular victim recipient and judge the statement in light of the particular sensitivities of that person, rather than in light of the knowledge of a reasonable hearer. Such a judgment would be less protective of freedom of speech if the particular recipient happened to be particularly prone to feeling threatened. Likewise, the requirement that speech be targeted at identifiable individuals or entities helps protect freedom of speech, because political expression, even if extreme, will not be suppressed so long as it is aimed at a group at large and does not target particular individuals or entities for harm.

The subjective element, requiring that a speaker intend that his speech be taken as a threat, is what is missing from the tests currently followed by a majority of courts. This element is particularly important to protecting freedom of speech, as it insures that a person will not be prosecuted for speech that he or she did not intend to be taken as a threat. While courts have repeatedly held that an objective test achieves this goal, and while indeed it might in many cases, the subjective element must still be a part of the test. This is because the subjective element increases the burden of proof that the plaintiffs must meet, and as such, serves two purposes. First, it increases the level of protection given to pure speech, by narrowing the category of speech that can be classified as a "threat". Second, it will decrease overreaching by prosecutors, who might otherwise feel free to prosecute any speech that might be a threat, especially in light of the attitude held by many that the Internet is dangerous and ought to be closely regulated.

The standard proposed above would likely have resulted in the same outcome in the Baker case, for two reasons. First, the proposed test does essentially the same thing as the novel test that the Sixth Circuit Court of Appeals created. Second, on the merits, the e-mail were simply not threats and Baker should never have been indicted for sending them.

The objective prong of the proposed test asks whether a reasonable person hearing the speech would perceive the speech as a threat to identifiable individuals or entities in light of the relevant factual context. Here, Baker sent e-mail to Gonda describing his sick sexual fantasies. While a reasonable person reading this e-mail might have been appalled, a reasonable person would likely not have perceived the e-mail as threats. No specific girls or women were identified. Furthermore, Baker and Gonda fantasized about doing something together, but the facts show that Baker was in Ann Arbor, Michigan, while Gonda resided in Ontario, Canada. Finally, it was not even known who Gonda was, and, as the Court pointed out, he could have been anyone from a young girl to a group of elderly people in a retirement home.(76) Thus, it is not plausible to assume that Baker's speech constituted threats targeting particular individuals.

The subjective prong of the proposed test then asks whether the speaker intended his speech to be taken as a threat. Here, the answer is clearly no. The government sued on the theory that the speech posed a threat to young women or girls, not to Gonda. However, Baker and Gonda were engaging in a private e-mail exchange that was never intended to reach anyone else. Clearly, in writing his e-mail, Baker had no intent for anyone other than Gonda to read it, and no intent to threaten Gonda. Thus, this prong fails as well, and Baker's e-mail does not constitute a true threat.

The Sixth Circuit's test works essentially the same way as the test proposed by this paper. First, it asks whether a reasonable person would take the defendant's statement as a serious expression of an intention to inflict bodily harm. The analysis is the same as that discussed above under the objective prong of the proposed test. Second, the Sixth Circuit asks whether a reasonable person would perceive the expression as being communicated to effect some goal through intimidation.(77) This is the novel aspect of the Sixth Circuit's test. However, as discussed in Part II.D.1, above, it is an awkward way of objectively trying to phrase a subjective element. Asking whether the speaker intended to threaten, as the proposed test does, is much clearer and serves the same purpose, for if the speaker intended to threaten, then clearly he intends to achieve a goal through intimidation. Specifically, the speaker intends, at the very least, to create fear and apprehension in the recipient of the threat.

Finally, looking just at the facts of the case, Baker should never have been indicted in the first place based on only his e-mail exchange with Gonda. While the prosecution originally might have thought that Baker's fictional story using the name of a classmate constituted a threat, they could not find enough evidence to proceed using the story, and so they relied on the e-mail messages. Had there been a threats test such as the one proposed by this paper, however, the prosecution might have though twice before trying to indict Baker on his e-mail alone, as they would have had to prove a subjective intent to threaten. Clearly, Baker's private e-mail exchange did not indicate such an intent. Under a narrower standard, this case would not have made it to court on its facts.

The standard proposed above would likely have resulted in the same outcome in the Nuremberg Files case, given the context of the case. Under the objective prong of the proposed test, a reasonable person hearing, or in this case reading, the defendants' expression would be likely to perceive it as threatening to the individuals listed on both the posters and the website, especially in light of the relevant factual context. The plaintiffs had introduced into evidence various occasions on which doctors had been listed on similar posters and soon after had been shot and either killed or wounded. Additionally, the language on the website itself was threatening as it likened the plaintiffs to war criminals and stated that readers "might want to share your point of view with this 'doctor'", thus implying that the reader use violence against the listed doctors.(78)

Under the subjective prong of the proposed test, it is highly likely a jury would conclude that the defendants intended their posters and the website to threaten the plaintiffs, if not that they intended their expression to result in injury to the plaintiffs. That the defendants intended at the very least to frighten the plaintiffs out of practice is clear from the relevant context. Not only were defendant organizations and individuals part of an anti-abortion movement that had broken off from the mainstream movement because of their advocacy of violence to achieve their ends, but individual defendants had actively advocated the use of violence to put an end to the abortion practice.(79) Additionally, the defendants knew that use of such expression as the posters and website listing doctors' addresses and phone numbers had, in the past, resulted in the murders of several abortion doctors, yet the defendants did not curtail such expression.

Under the proposed test, then, the speech at issue in the Nuremberg Files case clearly constitutes threats. Because the facts of this case were so extreme, a jury was able to appropriately find that the defendants' speech amounted to true threats, using the Ninth Circuit's less protective objective speaker-based test. However, on different facts, a correct verdict might be less certain.

The threats test proposed above should be adopted because it gives needed protection to a speaker's First Amendment free speech rights. The requirement that the plaintiff or prosecution prove a subjective intent element insures that speakers will not be criminally punished for speech that they did not intend to be threatening. The extra burden on the plaintiff also ensures that prosecutors will not use a broad objective statute to attempt to silence speakers who have extreme political messages that may be harsh and repugnant to some but are not threatening. Additionally, this requirement helps show that United States courts have a clear policy of protecting First Amendment speech rights. Finally, this test has less of a chilling effect on free speech than a purely objective test might, because speakers know that when they are making statements that might border on being interpreted as threats, they will still be safe in voicing their views as long as they are addressed to an audience at large and are not intended to target particular individuals and entities.

Furthermore, the use of a subjective intent element in a true threats test finds support in Supreme Court opinions. The Supreme Court in Watts, as discussed above, stated that it had "grave doubts" about the objective test that the majority of courts followed.(80) This stemmed from a fear that freedom of speech was not receiving enough protection. Marshall's concurring opinion in Rogers, also discussed above, expressed the same doubts; in that opinion, Marshall suggested the use of a test essentially the same as that proposed above.(81) Thus, the test proposed in this paper is more in line with what the Supreme Court has suggested is an appropriate test than are the tests currently followed by a majority of courts.

Finally, the recent phenomenon of the Internet may bring an increase in litigation under both federal and state anti-threat statutes. Two recent cases - the Baker and the Nuremberg Files cases discussed above - provide examples of such litigation and illustrate as well how much confusion exists in the current true threats tests. Having an established test would allow courts to more quickly move to the merits of such cases. The test proposed will provide cyberspace speakers with the fullest First Amendment free speech protection possible, thus helping to preserve the Internet as the powerful marketplace of ideas that it is today.

While some may argue that an objective test is sufficient to protect freedom of speech, and that objective tests were used in both the Baker and Nuremberg Files cases to reach seemingly correct results, an objective test is not enough. Both the Baker case and the Nuremberg Files cases were, in a sense, extreme cases - the e-mails at issue in the Baker case clearly did not amount to threats, while the website and posters in the Nuremberg Files case clearly were intended to threaten. Many cases arising in cyberspace, however, may not be that clear. For example, if Baker had posted several fictional stories using the name of the same classmate or if Baker had publicly posted his e-mail exchange with Gonda and in it had named the same classmate, the case would have been much less clear. Or if the posters and website at issue in the Nuremberg case had been set in a different factual context, such as one in which there was only one past instance of violence against a listed abortion doctor, or perhaps no past instances of violence, or a context in which the anti-abortion groups using such expression were clearly known to be non-violent, that case too would have been less clear.

What is clear is that the numbers of individuals with diverse and often diametrically opposed viewpoints who access the Internet and publish material is going to continue to grow, and conflict is likely. Additionally, if groups advocate violence against particular targets, and do so publicly in cyberspace, they have the potential to reach much larger audiences of individuals who may be willing to put those threats into action; thus, the fear created by such threats may be greater, and the danger of someone actually executing them may be higher. Because of this, there is clearly a need to enforce anti-threat statutes. However, there is just as great a need to avoid chilling free speech in cyberspace. The test proposed in this paper attempts to appropriately strike that balance.

There is currently no consensus on what constitutes an appropriate test for determining when speech is a true threat such that it can be constitutionally prohibited by statute. This paper proposes a test that contains both an objective and a subjective element. A defendant should be held liable for making a threat if the plaintiff proves that: 1) a reasonable person hearing the speech would perceive the speech as a threat to identifiable individuals or entities, in light of the relevant factual context, and 2) the speaker intended the speech to be taken as a threat, regardless of whether the speaker intended to actually carry the threat out.

The rise of the Internet and cyberspace as a new medium through which speakers can threaten their victims may lead to more litigation under anti-threat statutes; thus, an established test is needed so that courts can move on to the merits of such cases and end the debate over the appropriate test. In a cyberspace context, as well as in the physical world, it is important that First Amendment freedom of speech rights receive the fullest protection possible, while at the same time, threats and the harms created by them are proscribed. The United States courts should adopt the test proposed in this paper, and supported by Justice Marshall's concurring opinion in United States v. Rogers, as it strikes a fair balance between the prohibition of threats and the protection of First Amendment free speech rights.

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sb: 2July99