McGeorge School of Law’s Professor, and Capital Center for Law & Policy Director, Leslie Gielow Jacobs was recently quoted in “Threatening Words: Courts lack clarity in determining when rants and raves exceed the boundaries of protected speech and should be considered a real danger” by David L. Hudson Jr. in the August 2018 edition of ABA Journal.

Hudson analyzed the protections under the First Amendment regarding threatening speech. While the First Amendment does not protect against true threats, miguided or offensive language is protected.

Below are the quotes from Professor Jacobs in Hudson’s article.

On the difficulties of determining what is protected and what is not:

“The unclear part of the definition is what makes a threat ‘true,’ meaning that it is an expression dangerous enough for the government to have the power to punish, and the definition is narrow enough that it does not chill protected speech,”

On best way to determine what is considered a true threat, and thus not protected by the First Amendment:

“My view, shared by most of the circuit courts, is that the best test is an objective test … The speaker must intend to send a communication that is objectively a threat to an objectively identifiable recipient or recipients. Whether the communication is a true threat should look to the reasonable perception of a well-informed, intended recipient of the threat.”

Agreeing with Justice Sotomayor on the dangers of having no guidelines for what is protected speech and what is not when it comes to threatening speech:

“The uncertain state of the law puts both speakers and victims of threatening speech at risk, and it engenders costly litigation,” Jacobs says. “I agree that it would be helpful for the court to clarify what limits the free speech guarantee places on the ability of governments to penalize threats.”