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Threatening Speech / Hate Speech

As most people are aware, the First Amendment of the United States Constitution protects a person’s right to free speech. Accordingly, the government is not permitted to pass laws that infringe on this right. However, contrary to what many believe, the First Amendment does not protect all speech. Despite the fact that it may not be friendly or pleasant, most hate speech is protected by the First Amendment. However, speech that constitutes a true threat can result in criminal charges even if there is no action taken whatsoever. It’s essential to understand your rights and when your speech can give rise to criminal charges.

Federal Crime - What Is A True Threat?

The First Amendment protects hyperbolic and rhetorical speech and threats. However, if an individual engages in speech that constitutes a true threat, this can give rise to criminal charges. Watts v. United States (1969) makes a distinction between protected speech and a true threat. In this case, Watts was charged with the federal crime of threatening to take the life of or to inflict bodily harm upon the President of the United States, based on his comment, “if they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” This case provides a framework, known as the Watts Factors, to determine when speech is protected and when it’s a threat. While this case was decided quite a while ago, many courts still rely on the Watts Factors today.

  1. Context
  2. Reaction
  3. Conditionality

Based on the context, the reaction of people who overhear the comments, and whether the threat was definitive or conditional, a court will determine if the speech constitutes a threat, thus giving rise to a crime. In Watts, the defendant was in the middle of a political rally, where tensions run high, and many people may say things in the heat of the moment. The people who heard Watts’ threats laughed at his comments, leading the court to believe that his threats were not taken seriously. In this case, it appeared that his comments were not taken literally, and the court ruled that his comments were a crude joke but not criminal.

State Crime - Criminal Threats

In California and in many other jurisdictions, words alone can give rise to criminal charges. In many jurisdictions, this is referred to as a terroristic threat. In California, this is now known as criminal threats. In order to be guilty of criminal threats in California, the following elements must be proven:

  1. An individual willfully threatened to commit a crime that would result in the death of or great bodily injury to another person;
  2. The threat was communicated orally, in writing, or via electronic communication;
  3. The speaker’s intention was for the statement to be taken as a threat, even if there was no intent of actually carrying it out;
  4. The threat was clear, immediate, and unconditional to the extent that the individual on the receiving end of the threat believed it would be carried out; and
  5. The person on the receiving end of the threat reasonably feared for their own safety or the safety of their immediate family members.

It’s important to note that it’s not required that the individual making the threat has the ability to immediately carry out the threat. Additionally, even if the accused doesn’t intend to carry out the threat, it’s sufficient to prove that they intended for it to be understood as a threat.

Attorney William Kroger Is Here To Help

Attorney William Kroger has been practicing criminal defense law for more than two decades. He understands how frightening it can be to face criminal charges. He has all of the necessary resources and experience to manage your case from beginning to end, and he has successfully defended countless individuals in their criminal cases. If you’re facing criminal charges, the police have requested to speak with you, or you have reason to believe that you will soon be charged with a crime, don’t hesitate to reach out for a free, confidential consultation. Set up a meeting by calling 323-655-5700 or by messaging us today.

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