Eddie Rabbitt and Crystal Gayle's country ballad “Just You and I” may have little in common with Eminem's rap “Sing for the Moment,”1 other than both being consistent with the general observation that musical lyrics often reflect an individual's intimate personal feelings, or views of societal problems. Depending on the context, when the lyrics espouse threats and violence against others, the “true threats” doctrine of First Amendment2 jurisprudence may play a significant role in determining whether there is evidence of a crime.

A 2011 trial in the U.S. District Court for the Eastern District of Pennsylvania has become a lightening rod with respect to the debate concerning the proper application of the doctrine.3 The case involved criminal charges concerning a variety of cyber threats by a defendant who used violent language modeled on rap lyrics and was the subject of oral argument before the U.S. Supreme Court this past December in Elonis v. United States. Interestingly, during the oral argument, Justice Anthony M. Kennedy, clarifying the issue for the legal combatants, commented that, “I'm not sure the court [referring to Supreme Court precedent] did either the law or the English language much of a good service when it said 'true threat.' It could mean so many things.”4 This article will address the First Amendment true threats doctrine, the impact the doctrine has on speech of a threatening nature in general, and web-based speech, in particular.

Free Speech

The justification and purpose of freedom of speech is to facilitate a full and free exchange of ideas in an open atmosphere, permitting the detection of error and discovery of truth in the “marketplace of ideas.”5 Most speech is presumed protected by the First Amendment. The presumption is based in part on the precept that speech concerning public affairs is the essence of self government.6 There are certain limited exceptions: Speech is not protected by the first Amendment if the speech falls into a problematic category, such as what courts call a “true threat” to harm someone, or incites one to violence, or is outright illegal, such as child pornography.7 The burden, generally, is on the government to demonstrate that the suspect speech falls within one of the narrow categories of unprotected speech.8

Speech determined to be a true threat is not protected. The Supreme Court has stated that true threats are 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.9 When deciding whether speech is a threat under the First Amendment, courts examine three factors: first, the language of the speech itself; second, the context in which the communication was made to determine if it would cause a reasonable person to construe it as a serious intention to inflict bodily harm;10 and lastly, whether the statement can be considered threatening or intimidating by the recipient.