Context, Content, Intent: Social Media’s Role in True Threat Prosecutions

The doctrine that carves out “true threats” from First Amendment protection has been unclear, in its scope and operation, since the exception was first recognized more than half a century ago. This category of unprotected speech was recognized by the Supreme Court in 1961, in a decision that identified “true threats” as distinct from other, protected, potentially threatening speech, but did not articulate a standard which lower courts could apply to distinguish the two. In the fifty years since, the Court has addressed the constitutional bounds of the true threat doctrine only once, clarifying that true threats require some showing of intent.

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