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First Amendment – Speech – Criminalized Threat

State v. Murle E. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, reversing 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25
For Perkins: William E. Schmaal, SPD, Madison Appellate

Issue: Whether and to what extent threats are protected from prosecution under the first amendment.


¶17 This court agrees with the State and the defendant that some threatening words are protected speech under the First Amendment. Only a “true threat” is constitutionally punishable under statutes criminalizing threats. The phrase “true threat” is a term of art used by courts to refer to threatening language that is not protected by the First Amendment.

¶29 This court has considered these cases and concludes that the test for a true threat that appropriately balances free speech and the need to proscribe unprotected speech is an objective standard from the perspectives of both the speaker and listener. A true threat is determined using an objective reasonable person standard. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered.

Like effect: U.S. v. Fuller, 7th Cir. No. 03-4081, 10/27/04; U.S. v. Stewart, 7th Cir No. 03-2675, 6/14/05. For detailed discussion as to why the “true threat” test is “determined under an objective standard that focuses on the speaker” — i.e., focus is on the fear instilled in the person threatened, not the speaker’s actual intent to carry out the threat — see State v. Kilburn, 151 Wn.2d 36, 84 P.3d 1215 (2004). But in determining the sufficiency of evidence establishing a true threat under this standard

An appellate court must be exceedingly cautious when assessing whether a statement falls within the ambit of a true threat in order to avoid infringement on the precious right to free speech. It is not enough to engage in the usual process of assessing whether there is sufficient evidence in the record to support the trial court’s findings. The First Amendment demands more.

Thus, the appellate court must, in this context, independently review “those ‘crucial’ facts that necessarily involve the legal determination whether the speech is unprotected.” See also State v. Johnston, WA SCt No. 76544-8, 1/26/06.But for an opposing view, possibly creating a cert-worthy split, see U.S. v. Cassell, 9th Cir No. 03-10683, 5/24/05 (“We are therefore bound to conclude that speech may be deemed unprotected by the First Amendment as a ‘true threat’ only upon proof that the speaker subjectively intended the speech as a threat”), specifically taking Fuller to task for not taking into account Virginia v. Black, 538 U.S. 343 (2003).

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