The distinction between free speech and prosecutable threat has become increasingly significant, with organizations understandably questioning what exactly crosses that line. Last year’s fatal shooting of a UnitedHealthcare executive and the marked increase in online threats made against other corporate representatives have brought that distinction to the forefront. For corporate executives and in-house counsel, it is important to understand that threatening communications must be specific, unique, and supported by the proof of the speaker’s intent to merit a criminal investigation or prosecution.
Free Speech
The First Amendment protects the right of individuals to express opinions, ideas, and beliefs without fear of government censorship. This protection is not absolute. There are exceptions. One key exception is the concept of “true threats.”
A “true threat” is a serious expression conveying that a speaker intends to commit an act of illegal violence. By their nature, true threats subject a victim to a fear of violence and the disruptions to life caused by such fear.
The U.S. Supreme Court has addressed this issue in several landmark cases, providing criteria to distinguish between protected speech and prosecutable threats. These include:
- Virginia v. Black, 538 U.S. 343 (2003): The Court held that cross-burning with the intent to intimidate constitutes a true threat, emphasizing that the speaker’s intent to instill fear is a critical factor.
- Elonis v. United States, 575 U.S. 723 (2015): Further clarified the standard for prosecutable threats, holding that prosecutors must prove that the speaker intended to cause fear. A statement merely perceived as threatening by a reasonable person is not enough.
Actionable Threat
Many statements fall within a reasonable person’s common-sense idea of what is “threatening.” Whether a perceived threat is a “true threat” and violates the law requires a different analysis. Determining whether a statement is an actionable threat requires a detailed, fact-intensive, case-by-case analysis of the speaker’s subjective intent and awareness. The subjective nature of this totality-of-the-circumstances analysis presents significant challenges for investigators and prosecutors who must ultimately demonstrate beyond a reasonable doubt that a “true threat” was made.
When deciding whether a matter is actionable, prosecutors rely heavily on Counterman v. Colorado, 600 U.S. 66(2023). For a communication to be a “true threat” versus protected free speech, prosecutors must prove two elements beyond a reasonable doubt. First, that a defendant was actually aware of the threatening nature of the communication. Prosecutors must prove that the defendant had some personal, subjective understanding of the statement’s threatening nature. Second, that a defendant recklessly disregarded a substantial and unjustifiable risk that the defendant’s words or communications would be interpreted as threatening violence. True threats do not include statements that, in context, do not convey a real possibility of violence. What that does or does not look like differs in every single case.
To be actionable, authorities are looking for a threat (1) to commit actual violence; (2) that is extremely specific in time, location, and manner; and (3) specifically demonstrates that it is the speaker who intends to commit the violent act, not some other person or a desire that some other person commit the act.
Since Counterman, we have seen investigators and prosecutors in some jurisdictions take an extremely narrow view of what constitutes an actionable threat. Authorities in other jurisdictions often take a more aggressive approach to investigating and prosecuting threats cases. The context surrounding the threat, the nature of the threat, the actions taken in response to the threat, and whether a federal interest is implicated are all factors federal authorities will take into account when deciding whether to investigate and ultimately prosecute a threats case.
Implications for Corporate Executives and Legal Counsel
Where the First Amendment prevents certain threatening communications from being initially actionable, fear and uncertainty may reign. The proliferation of social media, artificial intelligence, and online communication have amplified the ways in which concerning statements are hurled at professional entities and their respective employees. For corporate executives and legal counsel, this presents a unique challenge in ensuring the safety and well-being of employees while respecting rights to free expression as recognized under the law.
So, what do you do?
First, implement or continue to maintain monitoring and reporting mechanisms to identify when concerning statements are made. Although the necessary specificity may be lacking under the law, free speech can quickly turn into an actionable threat. A documented history of prior concerning statements creates context and is useful in proving a defendant’s necessary intent.
Second, enlist the assistance of legal counsel who have the prosecutorial and investigative experience in this area to provide an objective assessment of the communication(s) before spending time and resources in the hope that a criminal investigation will be initiated against the speaker.
Third, when a statement qualifies as a “true threat,” allow counsel to assess the security pros and cons of pursuing civil recourse or criminal charges. If a criminal referral is appropriate, our attorneys have relationships within the prosecutorial and investigative space that assist in coordinating effective referrals.
