When Is a YouTube Video a True Threat ?

In United States v. Jeffries, the Sixth Circuit upheld a defendant’s conviction under 18 U.S.C. § 875(c) for transmitting a threat through interstate commerce after the defendant posted a music video on YouTube. The video threatened a local judge presiding over the defendant’s child custody proceedings. Circuits have split on whether § 875(c) and other similar federal threat statutes require the defendant to possess a subjective intent to threaten. This Article argues that the “true threat” test courts use to apply § 875(c) essentially incorporates a subjective intent to threaten. The Article then applies the subjective intent requirement to YouTube videos, using the reasoning in United States v. Alkhabaz as a model

Elonis v. United States: The Doctrine of True Threats: Protecting Our Ever-Shrinking First Amendment Rights in the New Era of Communication

The First Amendment protects one of our most precious rights as citizens of the United States—the freedom of speech. Such protection has withstood the test of time, even safeguarding speech that much of the population would find distasteful. There is one form of speech which cannot be protected: the true threat. However, the definition of what constitutes a "true threat" has expanded since its inception. In the new era of communication—where most users post first and edit later—the First Amendment protection we once possessed has been eroded as more and more speech is considered proscribable as a "true threat." In order to adequately protect both the public at large and our individual right to free speech, courts should analyze a speaker’s subjective intent before labeling speech a "true threat." Though many courts have adopted an objective, reasonable listener test, the U.S. 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. By holding that the speaker’s subjective intent to threaten is necessary for a true threat conviction, the Court will restore the broad protection afforded by the First Amendment and repair years of erosion caused by an objective approach

Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity

Traditional free speech doctrine is inadequate to account for modern terrorist speech. Unprotected threats and substantially protected lawful advocacy are not mutually exclusive. This Article proposes recognizing a new hybrid category of speech called “terrorizing advocacy.” This is a type of traditionally protected public advocacy of unlawful conduct that simultaneously exhibits the unprotected pathologies of a true threat. This Article explains why this new category confounds existing First Amendment doctrine and details a proposed model for how the doctrine should be reshaped

Is that a threat?: Elonis v. United States and the Standard of Intent for True Threat Convictions

This commentary analyzes the Supreme Court case Elonis v. United States where the Court will determine the applicable criminal-intent standard required to convict a defendant for threatening speech. After a series of violent Facebook posts against coworkers and his estranged wife, Petitioner Elonis was convicted for making so-called true threats of violence--speech not granted First-Amendment protection. Elonis argues that the prosecution should have been required to prove that he actually had the intent to threaten people when he wrote the posts, not simply that a reasonable person would find the posts threatening. The Author argues that the Court should rule in the Petitioner\u27s favor and require a finding of subjective intent because such a mens rea requirement is suggested in the plain meaning, legislative history, and by the Court\u27s true-threat jurisprudence

Is that a threat?: Elonis v. United States and the Standard of Intent for True Threat Convictions

This commentary analyzes the Supreme Court case Elonis v. United States where the Court will determine the applicable criminal-intent standard required to convict a defendant for threatening speech. After a series of violent Facebook posts against coworkers and his estranged wife, Petitioner Elonis was convicted for making so-called true threats of violence--speech not granted First-Amendment protection. Elonis argues that the prosecution should have been required to prove that he actually had the intent to threaten people when he wrote the posts, not simply that a reasonable person would find the posts threatening. The Author argues that the Court should rule in the Petitioner\u27s favor and require a finding of subjective intent because such a mens rea requirement is suggested in the plain meaning, legislative history, and by the Court\u27s true-threat jurisprudence

Searching for Truth in the First Amendment\u27s True Threat Doctrine

Threats of violence, even when not actually carried out, can inflict real damage. As such, state and federal laws criminalize threats in a wide range of circumstances. But threats are also speech, and free speech is broadly protected by the First Amendment. The criminalization of threats is nonetheless possible because of Supreme Court precedents denying First Amendment protection to “true threats.” Yet a crucial question remains unanswered: What counts as a true threat? This Note examines courts’ attempts to answer this question and identifies the many ambiguities that have resulted from those attempts. In particular, this piece highlights three frontiers of judicial confusion that are likely to arise in a true threat case: (1) what type of intent the First Amendment requires, (2) the proper standard of review on appeals of true threat convictions, and (3) the contextual analyses in which courts engage to assess whether a threat is “true” (and, by extension, whether a threat conviction was constitutional). This third frontier is discussed most extensively, as it has the greatest impact on a case’s ultimate outcome. This Note also proposes a new framework for inquiries into the context of true threats, adapted from defamation law, in order to increase consistency and ensure adequate protection of speech rights within the chaotic true threat doctrine