October 2006, Volume 92, Issue 6
"True Threats" and the Issue of Intent
by Paul Crane
92 Va. L. Rev. 1225 (2006)
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What mens rea, if any, is required for threatening speech to be constitutionally criminalized? Must the speaker have intended for his communication to be threatening? In Virginia v. Black (2003), the Supreme Court for the first time provided a definition of “true threats,” a categorical exception to the First Amendment. However, the Court failed to clearly answer the above questions. As a result, lower courts have interpreted Black’s language to reach contradictory results regarding the issue of intent. Consequently, speech that is constitutionally protected in one jurisdiction may be criminalized in another. Such controversy and confusion is not new to the jurisprudence. Since the Court’s decision in Watts v. United States (1969), which created the “true threats” exception, lower courts have disagreed over the proper intent standard for threatening speech. Instead of clarifying the doctrine, the Court’s decision in Black has only served to further muddy the jurisprudence. When Black was decided, the overwhelming majority of courts had settled on an objective intent standard; however, the Court’s language in Black has cast some doubt on the propriety of that approach. This Note will examine the issue of intent and its disputed place in the true threats jurisprudence from the debate’s inception to the present day. Moreover, the impact of Black will be elucidated and explored. Finally, this Note suggests that when the Court addresses the issue of intent again, it should adopt a standard that requires the government to prove that the speaker intended for his communication to be threatening.
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