The shifting line between free speech and a criminal threat

Summary

Podcast Summary: Throughline – "The Shifting Line Between Free Speech and a Criminal Threat"

Air date: June 11, 2026
Host: Rund Abdelfattah
Featured Experts:

• David L. Hudson Jr. – Law Professor, First Amendment Expert
• Marianne Franks – Law Professor, Cyber Civil Rights Initiative President
• Justice Clarence Thomas* (voice excerpts and key opinions cited)

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Episode Overview

This episode of Throughline examines the complex and evolving boundary between free speech and criminal threats in the United States. Using pivotal legal cases from the past century—including Watts v. United States (1969), Virginia v. Black (2003), and Counterman v. Colorado (2023)—Rund Abdelfattah and guest legal scholars trace how courts have struggled with defining "true threat," the context in which speech becomes criminal, and the tension between protecting robust debate and ensuring personal and public safety. The episode weaves these legal battles into the present moment, as threats against public officials and private individuals surge, exploring the consequences for democracy and civil liberties.

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Key Discussion Points & Insights

1. Watts v. United States: The Origin of "True Threats"

[00:18 – 14:55]

• The Incident: In 1966, 18-year-old Robert Watts at an anti-war protest said, “If they ever make me carry a rifle, the first man I want to get in my sights is LBJ."

  • [01:39] Direct quote read: “If they ever make me carry a rifle, the first man I want to get in my sights is lbj.”
  • Most attendees laughed (context: protest, jest, hyperbole).
  • An undercover army investigator did not; Watts was arrested under a 1917 law against threatening the president.

• Legal Context:

  • US free speech law is uniquely permissive—only three exceptions: incitement to imminent lawless action, true threats, and fighting words.
  • Comparisons to earlier cases, e.g. Luther Baldwin, who was jailed for drunkenly wishing harm on President Adams (Alien & Sedition Acts, 1798).

• Supreme Court Ruling:

  • The court ruled for Watts, coining "true threats" as unprotected speech, but upheld that not all hostile speech is a threat.
  • Watts Factors:
    1. Context of the statement
    2. Conditional nature of threat
    3. Audience reaction (laughter)
  • Notable quote [13:28]:
    • "Justice William O. Douglas in the Watts decision... I thought the days of the Alien and Sedition act were over. That was one of the sordid, sorriest chapters in our history. And yet here we are again prosecuting somebody for a comment that was really just made in jest."
  • Precedent: "True threats" are not protected by the First Amendment, but not all criticism of officials qualifies.

---

2. Virginia v. Black: The Challenge of Symbolic Speech and Intent

[16:38 – 25:00]

• Case Details:

  • Two cases involving cross burnings in Virginia (late 1990s):
    • Barry Black (Klan rally cross burning, claimed political speech)
    • O’Mara & Elliott (cross burned on a Black neighbor’s lawn, clear intimidation)

• Core Question:

  • Does the act’s intent define a true threat? Is all cross burning inherently threatening, or only when meant to intimidate?

• Notable Courtroom Moment:

  • Justice Clarence Thomas, rarely vocal at oral argument, spoke forcefully about the terroristic context of a burning cross:
  • [21:07]: Justice Thomas:
    • “We had almost 100 years of lynching... the cross was a symbol of that reign of terror. Isn’t that significantly greater than intimidation or a threat?”
  • Law professor Marianne Franks:
    • [21:39] "...That is the impact certainly on someone who is black... that is meant to intimidate you and put you in fear that the next step is going to be physical violence."

• Ruling:

  • The Court upheld some cross-burnings as protected, but only if not done with intent to intimidate.
  • [24:01]
    • "In order to be a true threat, the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group..."
  • Emphasis on context, motive, and impact.

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3. The Internet Age and Counterman v. Colorado

[26:15 – 34:07]

• Changed Landscape:

  • Rise of online threats, polarization, and ambiguity over “true threats"—does intent or perception matter more?
  • Personal anecdote: David L. Hudson Jr. relates a racially charged encounter after Obama’s election ([27:06]).

• Case Recap:

  • Billy Counterman obsessed over musician Coles Whalen, sending hundreds of disturbing messages. She felt constantly surveilled, afraid to perform, and learned he had a history of violent threats.
  • Convicted under Colorado’s stalking law ("would a reasonable person feel threatened?"), he appealed, claiming he had no intent for her to feel terrorized.

• Supreme Court Decision ([32:08]):

  • Ruled 7-2 for Counterman:
    • “Our precedent demands that the state make a showing about what the defendant had in his mind.”
  • To convict for a true threat, prosecutors must show conscious disregard—awareness there's a substantial risk they'll be taken as threatening.

• Broader Impact:

  • Raises the bar for conviction; easier for stalkers/private actors to evade liability if they claim not to “intend” harm, even if their actions are terrifying.
  • Quote [33:56], Marianne Franks: “You’re giving the private stalker even more room to stalk than you would even give someone... able to criticize a political figure.”

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4. Ongoing Questions: Safety, Liberty, and Power Dynamics

[34:07 – End]

• Enduring Dilemma:

  • Where does protected dissent end and criminal threat begin? The line is blurry, shifting with the times and technologies.
  • [35:51], David Hudson Jr.: “I think there’ll be a few Watts’s in the mix... overzealous prosecutors will sometimes target people who really did not intend their statements to be threatening.”
  • [36:38]:
    • Sometimes incendiary speech signals danger; other times, it’s a safety valve for anger.

• Final Reflection:

  • [37:23], Marianne Franks:
    • “We are very permissive about hate speech. Do we honestly think that the United States in 2026 is a more peaceful country... because they’re allowed to say anything they want?”
  • Attention called to power differentials: threats aren’t just citizen-to-official, but the role of government in intimidating dissent.

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Notable Quotes & Memorable Moments

| Timestamp | Speaker | Quote/Context | |-----------|---------|---------------| | 01:39 | Rand Abdelfattah | "What Robert Watts actually said was, quote, if they ever make me carry a rifle, the first man I want to get in my sights is lbj." | | 13:28 | David L. Hudson Jr. (on Justice Douglas) | "I thought the days of the Alien and Sedition act were over. That was one of the sordid, sorriest chapters in our history. And yet here we are again prosecuting somebody for a comment that was really just made in jest." | | 21:07 | Justice Clarence Thomas | "[...] the cross was a symbol of that reign of terror. Isn’t that significantly greater than intimidation or a threat?" | | 21:39 | Marianne Franks | "That is the impact certainly on someone who is black... that is meant to intimidate you and put you in fear that the next step is going to be physical violence." | | 24:01 | Rand Abdelfattah | "In its ruling, the Supreme Court said that in order to be a true threat, 'the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals, unquote.'" | | 32:08 | Justice Clarence Thomas | “Our precedent demands that the state make a showing about what the defendant had in his mind.” | | 33:56 | Marianne Franks | “You’re giving the private stalker even more room to stalk than you would even give someone who would have been able to criticize a political political figure.” | | 35:51 | David L. Hudson Jr. | “I think there’ll be a few Watts’s in the mix of that... sometimes they'll target people who really did not intend their statements to be threatening.” | | 37:23 | Marianne Franks | "We are very permissive about hate speech. Do we honestly think that the United States in 2026 is a more peaceful country... because they're allowed to say anything they want?" |

---

Timestamps for Important Segments

• Origins of "true threat": Watts v. US – [00:18–14:55]
• Defining threats in symbolism: Virginia v. Black – [16:39–25:00]
• Online threats & Counterman v. Colorado – [26:15–34:07]
• Modern challenges & concluding reflections – [34:07–End]

---

Tone & Flow

The episode is thoughtful, analytical, and marked by an urgency reflecting current events—a blend of informed legal analysis, historical anecdotes, and present-day resonance. Guests convey both the philosophical and practical stakes of these precedents. Both host and guests frequently return to the role of context, the difficulty of the task, and the need for vigilance about who is empowered to draw the line between speech and threat.

---

Conclusion

This Throughline episode illuminates how the line separating protected speech from prosecutable threat was drawn—and how unresolved questions from the past keep re-emerging as technology, politics, and society evolve. It leaves listeners with the enduring tension between upholding free expression and protecting safety—a legal and cultural battleground with no easy answers.

Transcript

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[Rand Abdelfattah (Host/Narrator)]

August 27, 1966, a group of mostly teens and men in their early 20s met in Washington, D.C. right on the

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Washington Monument grounds near the Sylvan Theater.

[Rand Abdelfattah (Host/Narrator)]

They were part of the W.E.B. du Bois Club, a national youth organization sponsored by the Communist Party usa. It was a left wing group that was riding the wave of the civil rights movement, labor organizing and anti big government.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

They were really protesting the Vietnam War and the racially disparate use of the draft.

[Rand Abdelfattah (Host/Narrator)]

Black men were only 12% of the US population, but they made up over 30% of the ground combat battalion troops in Vietnam.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

There was a discussion group about police

[Rand Abdelfattah (Host/Narrator)]

brutality, and in that group there was one man named Robert Watts who made an off the cuff comment.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

And allegedly Robert Watts, who was 18 years old at the time, said something that affect, you know, look, if they make me go fight in Vietnam, the first person I'm going to put in my scope is lbd. Lbj. They're not going to make me go kill my black brothers.

[Rand Abdelfattah (Host/Narrator)]

Lbj, the president at the time.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Yeah, LBJ for Lyndon Baines Johnson, the President of the United States.

[Rand Abdelfattah (Host/Narrator)]

What Robert Watts actually said was, quote, if they ever make me carry a rifle, the first man I want to get in my sights is lbj.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

When he made that statement, everybody just laughed.

[Rand Abdelfattah (Host/Narrator)]

But there was someone in the crowd who didn't think it was funny. An investigator with the US army, you

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

know, SCOPE President lbj. Oh my gosh, that's a threat.

[Rand Abdelfattah (Host/Narrator)]

Over the past few years, threats and harassment against public officials have become much, much more common. And this includes everyone from the President of the United States. It's the third time in a month that shots were fired near President Trump, who was at the White House last night to members of Congress.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

The Minneapolis man is facing federal and

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state charges following this week's attack on

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

Democratic Congresswoman Ilhan Omar, who was sprayed with liquid at a town hall event.

[Rand Abdelfattah (Host/Narrator)]

To state and local officials, there have

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

been some threats, right? Both political and personal, to Indiana lawmakers

[Rand Abdelfattah (Host/Narrator)]

and even civil servants like local librarians.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

This Livingston Parish librarian asked not to

[Rand Abdelfattah (Host/Narrator)]

be identified because they will fire me in a heartbeat. Threats have always been a part of US History, and they've often come in times of political turmoil or cultural tension in the country. But the Internet also opened a new chapter in the US Making threats easier to make. And harder to trace and prosecute. So what is a threat? How has it changed? And how do we balance safety and free speech in a world where the two seem increasingly at odds? I'm Rund Abdelfattah on this episode of Throughline from npr, going to tell you the stories of the people who have toed the line between protected speech and true threats.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

Hi, my name is Nina Nabi Zadeh

[Rand Abdelfattah (Host/Narrator)]

from Battleboro, Vermont, and you're listening to Throughline from npr.

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[Rand Abdelfattah (Host/Narrator)]

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[Justice Clarence Thomas (Supreme Court Justice)]

United States

[Rand Abdelfattah (Host/Narrator)]

after that Army officer overheard Robert Watts make those comments about President lbj, he was arrested and prosecuted under a federal law from 1917 that made it illegal to threaten the president. And that was one thing that made his arrest pretty unusual because speech laws in the United States are unusually permissive. The First Amendment protects a lot.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

We're a free speech outlier in the world.

[Rand Abdelfattah (Host/Narrator)]

This is David L. Hutson, Jr.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

I'm an associate professor of law at Belmont University Law School in Nashville, Tennessee,

[Rand Abdelfattah (Host/Narrator)]

and he's a First Amendment fellow for the Freedom Forum.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

You know, in many other countries, hate speech is unprotected speech. In the United States, hate speech for adults is constitutionally protected unless it incites imminent lawless action, rises to the level of a true threat, or is considered fighting words. And that's very difficult for a lot of people to accept.

[Justice Clarence Thomas (Supreme Court Justice)]

If they ever make me carry a rifle, the first man I want to get in my sights is lbj.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Now, when Robert Watts said this, he was not really meaning that he was going to go assassinate President Johnson. It really was saying that this war was unjust, that there was a lot of obviously social discrimination, racial discrimination against African Americans, and that the real enemy was the government sending us overseas to fight a war that we really didn't need to have in the first place.

[Rand Abdelfattah (Host/Narrator)]

And Robert Watts wasn't the first person to have gotten in trouble for saying something about the President.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

What happened to Robert Watts is a modern day iteration of what happened to Luther Baldwin. Back in New Jersey in the time of the Alien sedition Acts in 1798, Luther Baldwin was a patron in a

[Rand Abdelfattah (Host/Narrator)]

bar who was drunk.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

President Adams is coming in a procession.

[Rand Abdelfattah (Host/Narrator)]

A ceremonial cannon salute was planned for the President.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

And Luther Baldwin, allegedly in nothing more than a drunken rant, said, I hope if they fire at President Adams, they fire through his arsenal and he ends up getting prosecuted for violating the Alien and sedition act of 1798.

[Rand Abdelfattah (Host/Narrator)]

The Alien and Sedition Acts made it a crime to publish or speak, quote, false, scandalous and malicious statements against the federal government. The Federalist controlled Congress wanted to silence any political opposition in the new Republic, which was on the brink of war with France. The act expired just a few years later in 1801. But in 1917, towards the end of World War I and another moment of national worry, a new law was passed making it a crime to make threats against the President. This was the law that Robert Watts was arrested for half a century later when he made those comments about LBJ. The 1960s was a big moment for the First Amendment in the Supreme Court. By the time of the Watts case, several landmark cases over the previous three decades had already helped define what speech was. Unprotected speech by the First Amendment, speech like defamation or using, quote, fighting words that are intended to provoke violence or speech that created a, quote, clear and present danger. And by the 1960s, those First Amendment definitions would be tested and challenged again.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

I think there are multiple reasons why the 60s became this flashpoint for the First Amendment.

[Rand Abdelfattah (Host/Narrator)]

This is Marianne Franks.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

I'm a professor at the George Washington Law School and I'm also the President and the Legislative and Tech Policy Director of the Cyber Civil Rights Initiative.

[Rand Abdelfattah (Host/Narrator)]

And she's written a couple of books about the First Amendment, which we'll share with you in our show Notes.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

There's a lot of clashes happening in the 1960s. A lot of liberal versus conservative, a lot of anti war versus pro public order. So I think that's why you're seeing so many tensions and seeing the Supreme Court Try to navigate those tensions in the best way it can.

[Rand Abdelfattah (Host/Narrator)]

As part of those tensions, the US Government assigned a special unit of the

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

military called the Army Counterintelligence Corps, whose

[Rand Abdelfattah (Host/Narrator)]

job was to monitor protests.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

There was concern that there was espionage and there was concerns about communism. But it had also, by the 1960s, had also become very much a question of, you know, who is someone who is just protesting the kind of efforts that the federal government says we have to be involved in.

[Rand Abdelfattah (Host/Narrator)]

So that's how an army officer overheard Robert Watts.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

You've got an investigator from that unit who is monitoring these anti war protests that are happening on the Washington Monument. And that's how all this kicks off.

[Rand Abdelfattah (Host/Narrator)]

After Watts was convicted of threatening the President, he challenged the ruling in the U.S. court of Appeals. That court upheld his conviction by a 2 to 1 vote. But that one dissenting vote by Justice James Skelly Wright would be important. What was the nature of his dissent? What did he say? That was his reasoning.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Essentially what Judge Wright is saying is that we've got to allow breathing space for critical speech.

[Justice Clarence Thomas (Supreme Court Justice)]

Many statements on political affairs may, by implication or through hyperbole, encompass the violent end of the chief executive, the threat of punishment for all. Such statements would exert a chilling effect on political speech too drastic to be consistent with the guarantee of free expression.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

You've got the civil rights movement and you've got the Vietnam conflict. There's reason to have dissenting voices. There's reason to have different points of view. Right?

[Rand Abdelfattah (Host/Narrator)]

And that's what was on the Court's mind when it took up the Watts case the following year.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

The issue they're looking at essentially is whether Watts engaged in an unprotected true threat or whether he engaged in a form of protected speech.

[Rand Abdelfattah (Host/Narrator)]

But something kind of surprising happens. At least it's surprising to us today. The Court decides not to hear any oral arguments in the case.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

It usually means from the Court that it's a sign that they thought this was an incredibly easy case. They just really thought this is really straightforward.

[Rand Abdelfattah (Host/Narrator)]

And that's because just a few years before Watts, the Supreme Court had decided another BIC free speech case, the New York Times vs. Sullivan, which protected the media by making it hard for public officials to sue for defamation. In its opinion, the Court said, quote, debate on public issues should be uninhibited, robust and wide open. And it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

So they're really saying that was the standard that we have committed ourselves to that especially, public officials are going to have to tolerate to some extent, even really aggressive and vicious sounding kinds of statements because that's what it means to serve in public office. And that's what it means to be committed to robust debate.

[Rand Abdelfattah (Host/Narrator)]

So when they looked at the Watts case and the Justice Right opinion which laid out the context in which Robert Watts made his comments, it was pretty open and shut. The Supreme Court on April 21, 1969, issued its ruling.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

The first threshold question is what does it mean to make a threat? And that's when they say we only would be focused here on true threats, true threats. And it's at that point they say what we mean by a true threat or what we assume is a true threat is one that has to be more than just sort of loose talk or political hyperbole.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

The Court focused on what we have now come to refer to as the so called Watts factors. One was the context in which the statements were made.

[Rand Abdelfattah (Host/Narrator)]

A group of activists in a political discussion group. Then there was, number two, that the

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

threat was not unequivocal. It was very conditional. Right. If they draft me and make and send me to Vietnam. Right. The first person I'm going to put my scope is lbj. And then the third thing was the reaction of the listeners, the reaction of the audience. They laughed. They knew it wasn't a serious attempt to assassinate the President. It was a jest.

[Rand Abdelfattah (Host/Narrator)]

The U.S. supreme Court ruled in favor of Robert Watts.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Justice William O. Douglas in the Watts decision, writes a separate concurring opinion. And towards the end of his opinion, he essentially says, I thought the days of the Alien and Sedition act were over. That was one of the sordid, sorriest chapters in our history. And yet here we are again prosecuting somebody for a comment that was really just made in jest. It wasn't a true threat. You know, Luther Baldwin didn't mean for a cannon to fire at John Adams. And Robert Watts didn't mean that he was going to assassinate President Johnson.

[Rand Abdelfattah (Host/Narrator)]

Watts conviction was overturned and he was acquitted. What precedent does the Watts case set?

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

What the Watts case established is it actually uses the term true threats. And it says true threats are an unprotected category of speech.

[Rand Abdelfattah (Host/Narrator)]

So true threats would enter the legal lexicon like certain obscenities or libel or fighting words.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

And so Watts is profoundly important because it signifies that true threats are an unprotected category of speech. Watts is also important because it said that not all speech that's critical of the President is a true threat. Not all speech that criticizes public officials.

[Rand Abdelfattah (Host/Narrator)]

Coming up, what happens when speech is about people who aren't elected?

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

What the U.S. supreme Court recognized is not all cross burnings are the same.

[Rand Abdelfattah (Host/Narrator)]

How White Supremacists Help Define True Threats.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

This is Abdul from Home Syria. You're listening to Throughline from npr.

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[Justice Clarence Thomas (Supreme Court Justice)]

Part 2

[Rand Abdelfattah (Host/Narrator)]

Virginia vs Black In 1969, the Supreme Court decision Watts vs United States defined a certain category of protected speech, the kind of spouting off about a public official that might be impolite but was not considered to be a so called true threat.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

What we had honestly was a period of confusion in the lower courts because the Supreme Court did not define exactly what a true threat was.

[Rand Abdelfattah (Host/Narrator)]

That would happen about 30 years later in the early 2000s when the Supreme Court took on another true threat case. Actually two separate cases that were merged together. Both of them revolved around cross burnings.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

In one case you had a guy by the name of Barry Elton Black.

[Justice Clarence Thomas (Supreme Court Justice)]

What we had in the case of Barry Black was he heard that he's from Pennsylvania. He heard that down in Carroll county blacks and whites were holding hands on the sidewalk.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

He was a local Klan Leader.

[Rand Abdelfattah (Host/Narrator)]

This is 1998 in Virginia, not during Jim Crow.

[Justice Clarence Thomas (Supreme Court Justice)]

And so they came down, he came down and they had this event. They chose a spot near an open stretch of highway where they erected a 30 foot cross. That's as High as these columns.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

And he burned a cross with the permission of the property owner on a piece of land that was right near a state highway.

[Justice Clarence Thomas (Supreme Court Justice)]

And they burned it at night with a loudspeaker and talk about taking a 30, 30. And randomly.

[Rand Abdelfattah (Host/Narrator)]

It's hard to hear because Justice Anthony Kennedy speaks over Virginia State Solicitor General William Hurd. But he says the men were talking about randomly shooting black people. And a woman related to the property owner witnessed this and was terrified.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

There were about 25 to 30 people there, and she was horrified to see these people in klan hoods.

[Rand Abdelfattah (Host/Narrator)]

Barry Black was arrested for violating a Virginia state law that outlawed burning a cross in order to intimidate a person or group. And the law specified that any cross burning was inherently evidence of intent to intimidate. Black was convicted and fined $2,500.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

That was one case. The other case involved two individuals, Mr. O' Mara and Mr. Elliot.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

In May 1998, Richard Elliott and Jonathan O' Meara attempted to burn a cross on the lawn of Elliot's neighbor by

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

the name of James Jubilee.

[Rand Abdelfattah (Host/Narrator)]

James Jubilee was a black man who had moved next door to Richard Elliot,

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

and Mr. Elliot was firing his gun in his backyard. Jubilee had complained to Mr. Elliott's mother, and she responds, well, look, he likes to shoot guns, so he just shoots them in the backyard.

[Rand Abdelfattah (Host/Narrator)]

Elliot's mom said he shot fire as a hobby. The backyard was a shooting range. On May 2, 1998, Elliot and O' Mara drove a truck onto Jubilee's property. They planted a cross and set it on fire. They were arrested under the same Virginia law as Barry Elton Black. So these two cases were consolidated in front of the Supreme Court. And the question that they were trying to answer was, what exactly?

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Whether this statute itself, which criminalizes burning of a cross with an intent to intimidate others, does it violate the first amendment?

[Rand Abdelfattah (Host/Narrator)]

And at the core of that question, and what was debated in the court was, what does the action of burning a cross mean?

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

What's interesting is that the court's conducting oral argument in this case, and they're going about their business, and all of a sudden, a profoundly unusual thing happened. Justice Clarence Thomas asked a question. Mr. Dreeben, aren't you understating the effects of the burning cross?

[Rand Abdelfattah (Host/Narrator)]

Why is that profoundly unusual?

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

I don't think he had spoken in six to eight years.

[Rand Abdelfattah (Host/Narrator)]

Wow.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

a supreme Court argument.

[Rand Abdelfattah (Host/Narrator)]

Justice Thomas, who at the time was the sole black justice on the court, agreed with the state of Virginia. He's like, nobody burns a cross just for the heck of It.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

It's my understanding that we had almost 100 years of lynching and activity in the south by the Knights of Camellia and the Ku Klux Klan. And all of a sudden he talks about the Klan and the burning cross being a tool, a tool used in lynchings. And this was a reign of terror, and the cross was a symbol of that reign of terror. Isn't that significantly greater than intimidation or a threat?

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

Even if we, you know, can't necessarily go back and say, did that speaker at that moment when they're burning the cross, was that their intention? To some extent, it doesn't matter, because that is the impact certainly on someone who is black. What we always know as someone who's targeted by that kind of activity, that that is meant to intimidate you and. And put you in fear that the next step is going to be physical violence. Whether or not that physical violence ever transpires is somewhat beside the point. The point is that that is a sign that is going to cause that kind of fear.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

My fear is, Mr. Dreeben, that you're actually understating the symbolism and the effect of the cross. It was really a profoundly significant moment that Clarence Thomas spoke, but it wasn't

[Rand Abdelfattah (Host/Narrator)]

the only factor they considered. The Supreme Court announced its ruling the following Spring on April 7, 2003.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

The Supreme Court today upheld state laws that make cross burning a crime, but only in limited circumstances where the purpose of the burning is intimidation.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

And ultimately, what the US Supreme Court recognized is not all cross burnings are the same.

[Rand Abdelfattah (Host/Narrator)]

Not all cross burnings are the same.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

The act of burning a cross may mean that the person is engaging in constitutionally proscribable intimidation, or it may mean only that the person is engaged in core political speech.

[Rand Abdelfattah (Host/Narrator)]

So even though cross burnings have been used to intimidate black and Jewish people, they've also been used as a part of KKK rituals celebrating their Klan identity. The court said the those two scenarios are different.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Sometimes people burn crosses as a real intent to intimidate, as a tool of terror. Like what Elliot and Omara did to the Jubilee family. Like, you get a cross burned in your backyard. Right. You realize what message that sends. People want you dead. People want you to move out of the neighborhood, disappear, or we're going to kill you.

[Rand Abdelfattah (Host/Narrator)]

Well, because historically, it would mean they're going to come and potentially lynch you.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Exactly. And that's very different, though, than what Barry Elton Black did. Barry Elton Black burned a cross as part of a Klan meeting, as sort of this shared group ideology.

[Rand Abdelfattah (Host/Narrator)]

In its ruling, the Supreme Court said that in order to be a true threat, quote, the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals, unquote.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

And so that was profoundly significant because the Supreme Court in the course of its decision gave us at least something close to a definition of a true threat, which what the Watts decision did not do.

[Rand Abdelfattah (Host/Narrator)]

But still, Justice Clarence Thomas dissented. He believed the very action of burning a cross was inherently meant to intimidate, and that question of what an action was meant to convey would come back to the Court decades later. Coming up, how far will the court stretch true threats in the name of defending democracy?

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Hola, Victor de la Mexico Ferris People's Choice Awards. And you're listening to Throughline from npr.

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[Justice Clarence Thomas (Supreme Court Justice)]

Part 3 Counterman v. Colorado.

[Rand Abdelfattah (Host/Narrator)]

The cases that followed the Supreme Court's 2003 ruling on Cross burnings. That their true threats in some cases protected political speech in others revealed a deep divide in the lower courts over whose perspective should get priority when a threat is made. Does the speaker have to know why they're making a threat actually mean to be threatening when they spoke? Or could a reasonable person just say, no, a threat is a threat and that's enough? A lot of this confusion in the 2000s paralleled the rise of social media and increasing political and social tension in the country. Lots of threats fell into a gray area. Law Professor David Hudson, Jr. Experienced that firsthand.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

My wife's African American and for a time we were living in Smyrna, Tennessee, and we're walking down the side of the road, and four men drive up in a pickup truck with three Confederate flags, almost run us off the road. And they were chanting, white power, White power, White power.

[Justice Clarence Thomas (Supreme Court Justice)]

Wow.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Now, this was at the time that Obama had been elected, and there was something about Obama getting elected that caused this violent, virulent racism to just spew up.

[Rand Abdelfattah (Host/Narrator)]

Online threats to the president became a major concern after Barack Obama was elected in 2008, which not only made it more difficult for the Secret Service, but has also made it challenging for the Supreme Court, because the kinds of threats people could make and how easily they could make them was changing fast.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

If we're worried about the harm that the speech might cause, we maybe do need to think more carefully about how the Internet has made it so that there is a kind of mix of speech and conduct almost always right. You're not just speaking spontaneously when you're online. For better or for worse. You are making some kind of conscious step to type something out and indicate it to someone. You're not just speaking to 70 people. You could be speaking to 7 million people, all at different times, who might be taking it all in different ways. We've never really seen the Supreme Court grapple with that and suggest that maybe that means that some of the standards

[Rand Abdelfattah (Host/Narrator)]

have to be changed, because when the laws don't change, people take advantage.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

There are many, many abusers who literally get together and talk about the boundaries of the First Amendment and how they can get away with things.

[Rand Abdelfattah (Host/Narrator)]

And the context around speech online would play a role in another pivotal moment for defining true threats. The story here begins in 2014.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Billy Raymond counterman is a man from Colorado, and he becomes obsessed with this local musician, coles Whalen.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

It's 2010, and I am touring nonstop after my first release on Iconic Records.

[Rand Abdelfattah (Host/Narrator)]

This is Waylon, who has shared her story publicly on social media.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

At the time when this was happening, Cole Swalen, as she describes it, was sort of up and coming on the Colorado scene. She was making her name as a musician, so she was trying to cultivate her fan base. My career that I had worked so hard for, it felt like it was just about to tip over the edge. What I didn't know then was that there was a man who was already

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

fixated on me, and he sends her hundreds, literally hundreds of Facebook messages. He's like this obsessed fan, and she doesn't want anything to do with them. She rebuffs the efforts. She realizes that he's off, and she'll block him, and then he'll come Back with another account, and he'll send her more messages.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

She realized that this person was saying really disturbing things that seemed to indicate that they knew each other or that he wanted to know her or that he was watching her.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

A lot of them are very. I would think they were threatening if I was CW Right.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

I'm developing this heightened, fearful sense of my surroundings. And it got to the point where she was so scared that he was going to show up at one of her events or might be at her events, that she no longer could enjoy the performances. Her bandmates have talked about how she would just seem terrified. She'd be scanning the crowd, looking for someone suspicious. Always looking over my shoulder, always scanning the parking lot before I walk through. Where's the nearest exit? And she was trying to kind of put it out of her head and just not think about it until a family member did a little research on Counterman and discovered that he had been convicted for more making threats against female family members of some years prior. And these were really, really violent threats. And then she got very scared.

[Rand Abdelfattah (Host/Narrator)]

Wow.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

And decided to report it to the police.

[Rand Abdelfattah (Host/Narrator)]

After she reported this to the police, Billy Counterman was arrested and convicted under a Colorado stalking law that made it a crime to repeatedly communicate with someone in a way that would make a reasonable person suffer serious emotional distress.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

And he then challenges that on first Amendment grounds, saying the only way that the state is allowed to convict him for stalking is if he intended for his recipient to feel that terror, as opposed to it being the kind of thing a reasonable person would experience as terrifying.

[Rand Abdelfattah (Host/Narrator)]

Billy Counterman, who was diagnosed with a mental illness, was arguing that he was innocent because he didn't intend for Coles Whelan to feel terrorized.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

The court uses the Counterman case as the vehicle to answer that unanswered question.

[Rand Abdelfattah (Host/Narrator)]

Did the speaker have to know that what they said was threatening, or do we take the word of what a, quote, reasonable person would feel?

[Justice Clarence Thomas (Supreme Court Justice)]

Our precedent demands that the state make a showing about what the defendant had in his mind.

[Rand Abdelfattah (Host/Narrator)]

The Supreme Court, in its 7 to 2 decision read by Justice Elena Kagan, ruled in favor of Billy Counterman. His conviction was overturned.

[Justice Clarence Thomas (Supreme Court Justice)]

And we do that again here to ensure that the prosecution of unprotected speech doesn't. Doesn't work to chill valuable, protected expression.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

And essentially, what the US Supreme Court said is prosecutors have to show you acted in conscious disregard as to whether your statements would be considered threatening.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

It's not that you had to actually intend for something to be terrifying, but you had to have Known that there was a substantial risk that the person would think of it as terrifying and you did it anyway.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

And I think that's a significant development. Justice Kagan wrote that opinion. She's like, if we allow people to be prosecuted without showing any sort of subjective intent or awareness on the part of the defendant, then there is the possibility that people might be prosecuted for sort of hyperbolic political type statements that somebody else might view as a threat that the speaker really didn't intend as a true threat.

[Rand Abdelfattah (Host/Narrator)]

Okay, so you might be thinking this wasn't a case about political speech, it was a case about stalking. Aren't those different? The court said, basically, that's not the point here. We have to think about how ruling against countermen, telling him he wasn't allowed to say what he said could potentially affect all kinds of speech. Which means that, yes, in the name of protecting speech that allows us to be critical of the government or politicians. The court's ruling also has effects on private citizens, including people experiencing domestic abuse or stalkers.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

You're giving the private stalker even more room to stalk than you would even give someone who would have been able to criticize a political political figure.

[Rand Abdelfattah (Host/Narrator)]

In the first true threats case in 1966, the court ruled that Robert Watts was allowed to make a hyperbolic statement about shooting President LBJ in a context where it was clear he was making a political point about the Vietnam War, not an actual true threat against the president's life. Fifty plus years later, when Billy Counterman sent hundreds of messages to a musician, the court also said that was not a true threat because the government had not proven that Counterman had at least some understanding that this speech was threatening. And the court vacated Counterman's conviction in order to preserve the rights of the Wattses of the world. I know that we've spent a lot of time talking about the legalese, and I know you've said for years you're focused on the legalese, but when we think about the context surrounding that Watts case, it was so, so important, right? Like the fact that this was peak civil rights era. You have political assassinations happening in the country. You have these very big kind of existential questions facing the country. That moment feels super similar in a lot of ways to the moment we're in now. And so thinking about the context today, does that change or influence how you're thinking about these various cases and this question of true threats fundamentally?

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Well, I worry just in this era of incredible political divide and great political polarization and just vitriolic rhetoric that you see on social media, I think they're just simply going to be more true threat prosecutions.

[Rand Abdelfattah (Host/Narrator)]

Do you think there might be some Watts's in the mix of that?

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

I do. I think there'll be a few Watts's in the mix of that. Of it. I think that unfortunately, imprecision occurs. And when you have overzealous prosecutors, sometimes they'll target people who really did not intend their statements to be threatening.

[Rand Abdelfattah (Host/Narrator)]

And I guess that's the, you know, a through line of this whole story is that figuring out that boundary, right, between the real threats, the true, true threats, and the hyperbolic or perceived true threats is. It's impossible. It seems to get it completely right.

[David L. Hudson Jr. (Law Professor/First Amendment Expert)]

Exactly. It's an enduring question. It's a very difficult question. And I think it just shows you why this is so relevant and germane today. I think sometimes the speech is a window into troubled souls and that people who engage in incendiary speech are giving off clear signals that they're a danger. Right. And that they could react with violence. And then other times, you have the sort of safety valve theory of free speech, that allowing somebody to vent, blow off steam, actually may prevent violence. So it's sometimes one way and sometimes the other, and that's what makes this even more difficult in this country.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

We are very permissive about hate speech. Do we honestly think that the United States in 2026 is a more peaceful country where people really get along with each other because they're allowed to say anything that they want?

[Rand Abdelfattah (Host/Narrator)]

Marianne Franks says we have to remember that threats can go both ways, from citizens to public officials, but also the other way around. And the power dynamics have always mattered.

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

So much of these cases focus on what it is that individuals are allowed to say to public figures or what private individuals say to each other. What we're oftentimes not thinking about is how much the government or public officials themselves are able to cause fear and intimidation in their citizens. Right. So. So it is interesting to think about, if we think that free speech is so important because we want there to be freedom for the public, for the people to be able to criticize public officials and to speak freely and criticize the government, are we doing anything really to hold back the force of the government from repressing dissenting voices and from engaging in outright violence against those that they think disagree with their perspectives. If we really look at our history, it is not the kind of story that we normally tell ourselves.

[Rand Abdelfattah (Host/Narrator)]

That's it for this week's show. I'm Randab Dil Fattah Throughline was created by me and Ramtin Adablooi. This episode was produced by me and Sarah Wyman, Casey Minor, Christina Kim, Devon Kadayama, Kiana Mokattem, Irene Noguchi, Liana Simstrom,

[Marianne Franks (Law Professor and Cyber Civil Rights Initiative President)]

Julia Redpath, Skylar Swenson.

[Rand Abdelfattah (Host/Narrator)]

Fact checking for this episode was done by Kevin Voelkel. Thanks also to Johannes Durgi, Cheyenne Butler, Beth Donovan, Yolanda Sangweni, and Tommy Evans. This episode was mixed by Robert Rodriguez. Music for this episode was composed by Ramtin and his band Drop Electric, which

[Justice Clarence Thomas (Supreme Court Justice)]

includes Naveed Marvi, Sho Fujiwara, Anya Mizani

[Rand Abdelfattah (Host/Narrator)]

and finally, if you have an idea or liked something you heard on the show, please write [e-mail] and if you're open to us giving you a call back, leave your number too. We might feature your idea in an upcoming episode. Also, make sure to follow us on Apple, Spotify or the NPR app. That way you'll never miss an episode. Thanks for listening.

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