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Unpublished Paper
The Doctrine of True Threats: Protecting Our Ever-Shrinking First Amendment Rights in the New Era of Communication
ExpressO (2015)
  • Mary M Roark
Abstract
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Such protection has withstood the test of time and is heralded as one of our most precious rights as Americans. “The hallmark of the protection of free speech is to allow ‘free trade in ideas’—even ideas that the overwhelming majority of people might find distasteful or discomforting." However, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem." One such proscribable form of speech is the “true threat.” In proscribing such speech, it becomes paramount to tread with care so as to not infringe upon the protections afforded by the First Amendment. Requiring only that a listener be reasonable in interpreting speech as a threat results in an improper intrusion upon that right. Requiring the speaker’s subjective intent, rather, will protect the sanctity of the First Amendment. Though many courts have adopted the objective test, the Supreme Court now has the opportunity, in deciding Elonis v. United States, to take a monumental step in protecting the First Amendment right to free speech. Holding that the speaker’s subjective intent to threaten is necessary for a true threat conviction will restore the broad protection afforded by the First Amendment and repair the erosion which has occurred with the decisions adopting an objective approach.
Keywords
  • True Threat,
  • First Amendment,
  • Constitution
Publication Date
January 20, 2015
Citation Information
Mary M Roark. "The Doctrine of True Threats: Protecting Our Ever-Shrinking First Amendment Rights in the New Era of Communication" ExpressO (2015)
Available at: http://works.bepress.com/mary_roark/1/