The Supreme Court’s most recent foray into the thickets of true threats inVirginia v. Black seemingly raises as many questions as it provides answers. Particularly interesting will be whether intimidation becomes a synonym for, or a subset of, true threats. It may take further clarification from the Supreme Court to resolve these thorny questions and provide more guidance on when speech crosses the line from protected speech into unprotected threats or intimidation.  

Some courts interpret Supreme Court case law to require subjective intent, while others apply different versions of an “objective” test as some form of general intent to communicate.

A three-judge panel of the 9th U.S. Circuit Court of Appeals adopted this view in United States v. Cassel (2005), a case involving a man who allegedly intimidated prospective buyers to dissuade them from purchasing a plot of land next to his own. Jury instructions in his case provided: “Intimidation is to make a person timid or fearful through the use of words and conduct that would put an ordinary, reasonable person in fear or apprehension for the purpose of compelling or deterring legal conduct of that person.

“‘True threats’ encompass those statements where 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. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”

He made some highly charged statements, such as “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.

. A federal jury convicted Watts of a felony for violating the law and a federal appeals court affirmed his conviction. On appeal, the Supreme Court reversed, ruling that Watts’ statement was political hyperbole rather than a true threat.

Yet the line between protected expression and an unprotected true threat is often hazy and uncertain. What if a speaker makes a seemingly threatening statement about a political figure through the use of hyperbole? What if a student says that if he receives a poor grade, he may “go Columbine”? What if an abortion protester talks about participating in a “war against abortionists”?

Know that using just one of the above methods alone is not a valid way of identifying fake news – the methods are meant to be used together. While a credible news source has a duty to report facts without bias  and rely on trustworthy sources, this doesn’t mean media consumers are off the hook. As a reader, it’s also your job to verify the information you are reading. If you’re looking to sharpen your media literacy skills, try out the Tinder-style game Factitious. Developed by American University, the game presents you with actual stories and asks you to identify whether or not they can legitimately called news.

A sure sign of credible journalism is the presence of quotes. This adds an additional layer of integrity, allowing readers to do some research on the individual quoted and decide if they are a reliable source of information. Absence of quotes is usually a sign of an opinion piece, either published as a blog post or a column, or of fake news

If the site lacks these pages altogether, that’s also a red flag, as most news outlets want their readers to be able to contact them and learn more about them. Still not sure? Do a quick Google search of the website–does it have a reputation for publishing fake news or misleading information?

Offers to engage in illegal transactions are categorically excluded from First Amendment protection,” the Court wrote. “Offers to deal in illegal products or otherwise engage in illegal activity do not acquire First Amendment protection when the offeror is mistaken about the factual predicate of his offer.

The government argued the law was needed to keep pace with technology — that it was becoming harder to determine if certain images contained pictures of actual children.

The high court determined that the state had a compelling interest to prevent the sexual exploitation of minors in the making of child pornography. The Court called such an interest one of “surpassing importance.” The Court did recognize that child-pornography laws could be applied in a heavy-handed way: “Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy.”

“Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable ‘national standards’ when attempting to determine whether certain materials are obscene as a matter of fact,” Burger continued. “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City.”

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Obscenity remains one of the most controversial and confounding areas of First Amendment law. U.S. Supreme Court justices have struggled mightily through the years to define it. Justice Potter Stewart could provide no definition in Jacobellis v. Ohio other than exclaiming: “I know it when I see it.” In that 1964 decision, Stewart also said that the Court was “faced with the task of trying to define what may be indefinable.”

There are two types of pornography that receive no First Amendment protection — obscenity and child pornography

Wolf, chair of the Anti-Defamation League’s Internet Task Force, said much could be done to counter online hate speech besides criminalizing it. “There is a wide range of things to be done, consistent with the First Amendment, including shining the light on hate and exposing the lies underlying hate and teaching tolerance and diversity to young people and future generations,” he said. “Counter-speech is a potent weapon.”

With where the law currently stands, hate speech is protected so long as it stays in the realm of just speech. The great Supreme Court Justice Oliver Wendell Holmes wrote that “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” The Constitution ensures freedom of speech for all by fighting to protect even the most vile speech of all

When the case arrived to the Supreme Court, the case revolved around determining whether a post on social media crossed into the realm of the True Threat standard. The Court chose to apply a reasonable person standard to determine whether the threshold had been met. They ultimately ruled that a reasonable person would not have found the rap lyrics to be a true threat, and reversed the decision. Since the Supreme Court decision, there have been cases filed when children have used things like bomb emojis and have faced penalties. The Supreme Court choosing to apply a reasonable person standard will likely guide these cases moving forward

‘dangerous speech’ under the circumstances of this case. No evidence was admitted that showed the communications either ‘interfere[d] with or prevent[ed] the orderly accomplishment of the mission,’ or ‘present[ed] a clear danger to loyalty, discipline, mission, or morale of the troop

called the Nuremberg Files that listed the names and addresses of abortion providers who should be tried for “crimes against humanity” — could qualify as a true threat. The 9th Circuit emphasized that “the names of abortion providers who have been murdered because of their activities are lined through in black, while names of those who have been wounded are highlighted in grey.

True threats’ encompass those statements where 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. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect(s) individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.

Regulations against hate speech are sometimes imposed because the government (at any level) disagrees with the views expressed. Such restrictions may not survive constitutional scrutiny in court.

uch as the shooting at the Holocaust Museum (in Washington, D.C.) — were committed by individuals who used the Internet to spread hate and to receive reinforcement from like-minded haters, who made hatred seem normal and acceptable

Many such sites target young people and seek to promote their hateful ideologies.

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Identify a team that will meet to evaluate and formulate response strategies to disruptive or crisis-producing social media activity. • Have the team meet periodically to discuss how the university should respond to hypothetical scenarios or situations faced by other universities. • Clearly identify roles and responsibilities within the team and make sure they are understood. Create a clear incident response procedure.

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but regula-tion is unlikely to be permitted in the absence of implicating an established norm of the academic program (like the professionalism requirement of the nursing program in Keefe) or causing a material and substantial disruption of the college or university’s programs

that “[g]iven the strong state interest in regulating health professions, teaching and enforcing viewpoint-neutral professional codes of ethics . . . do not, at least on their face, run afoul of the First Amendment . . . [and] can be cited to restrict protected speech.” Using such a code, for example, to punish a student’s religious or political views expressed in speech would not be viewpoint-neutral and may violate the First Amendment, but school officials did not use the nursing code of ethics as a “pretext for viewpoint, or any other kind of discrimination

A nursing student posted several messages on his personal Facebook page that a fellow student believed related to the classroom and were threatening. In one message, the student threatened to use an electric pencil sharpener to give an unidentified person in the class a physical injury; other posts referred to his anger and made several offensive and troubling statement

If interactive communication is allowed in some facet of the account, the institution should assume that this space will be treated as a public forum—and most likely a designated public forum, especially if boundaries on subject matter and participation are announced at the inception—and that the university’s efforts to restrict speech in that forum will fail, notwithstanding the outcome in Morgan

Further, the institutions can prohibit members of the public or the college or university communities from contributing to the newsletters, writing letters to the editor or op-ed essays, or posting on social media sites—provided these constraints are applied in a viewpoint-neutral manner

e also deployed filters that disallowed posts using designated key words for the purpose of intercepting obscene, abusive, or clearly off-topic posts.

but can also enforce the rules against those who fall outside the groups designated to use the site or who speak on topics beyond the scope of the site. The rules themselves must be viewpoint neutral, and they must be enforced in a manner that does not discriminate against particular viewpoint

The court agreed that the resident’s post was clearly off topic and did not comport with the purpose of the forum, and that the website restriction justifying the removal was both viewpoint neutral and reasonably related to the purpose of the forum. Thus, the resident’s First Amendment rights were not violated.

The published policies of the site stated that the purpose of the site is to “present matters of public interest” in the county and encourage the submission of “questions, comments, and concerns,” but that the county reserved the right to delete submis-sions that violate enumerated rules, including comments that are “clearly off topic

In these cases, courts have required that the speech in question be intentionally directed at the school or members of the school community, or be of a nature that it would reasonably be understood as likely to reach the school.26 But courts have not addressed this question in the higher education setting

Although the answer is not yet settled in the case law, it is likely that off-campus speech (including social media speech) that materially and substantially disrupts campus order or is so severe as to deprive other students of the benefits of their educational experience can be disciplined

Even a very clear social media policy, however, may not eliminate all constitutional concerns, and the possibility exists that a court would declare the limits set by the institution, if challenged, incompatible with the First Amendment.

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But college and university leaders should assume that the circumstances are rare when social media communications are sufficiently disruptive or injurious to lose their First Amendment protection

imper-missible

Because social media commu-nications occur at a distance, it is unlikely that what might be fighting words if uttered face-to-face will meet the current test in the social media context

hus, hate speech cannot be deleted from a social media account unless it has other char-acteristics causing it to fall within one of the categories listed above. These categories of unprotected speech are narrow, and many kinds of speech that reasonable people find to be repugnant, offensive, rude, hateful, disgusting, profane, or loathsome are protected

At present, campus leaders should not assume that they have this authority if they invite interactive communications in a social media forum—although a college or university that reserves the right to pick and choose what postings are allowed on the site may be able to persuade a court that the site is a vehicle for government speech

fall within this category. The Supreme Court has treated a college or university newspaper as a designated public forum protected under the First Amend-ment.19 This shows that a designated public forum need not be physical space

when they attack or insult other members of the college or university community

those who wish to post on the site—provided that they are within the categories of persons invited to post on the site and that their posted content is within the site’s subject matter parameters—cannot be blocked simply because campus leaders oppose their viewpoints

he is not entitled to censor selected users because they express views with which he disagrees.”17 The president’s tweets themselves constitute government speech and the president has no obligation to create a space where others can rebut his message

hat actor exercises control over various aspects of the account. For space to constitute a forum for purposes of First Amendment analysis, the government must own or control it. Thus, when citizens speak on a higher education institution’s social media site and campus officials regulate that speech, the First Amendment applies

social media, describing these kinds of Internet platforms as one of “the most important places (in a spatial sense) for the exchange of views” and at one point describing social media as “the modern public square.”14This may mean that at some point in the future, the Court will be receptive to the argument that govern-ment-owned or -controlled space on the Internet is a new kind of traditional public forum

Thus, government-sponsored, interactive social media sites are not traditional public forums, and until recently nothing suggested that such sites might become an additional category of traditional public forum

jurisprudence

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The court explicitly declined to decide whether it was a traditional or limited public forum under the reasoning that viewpoint discrimination

holding that school board members’ Twitter and Facebook accounts, which were used to post content about their official positions and were opened to the public for interactive communications without limitation, were designated public forums.

or limited public forums whenever interactive communication is invited or allowed on these sites—and as simply an outlet for government speech (or possibly a nonpublic forum) if only one-way communications are allowed

This era of wide social media use only amplifies the complexity.

can create a social media site for one-way communication purposes, making itself the sole speaker, and ban others from posting on the site

The government has broad leeway to regulate speech in nonpublic forums, but the regulations must be reasonable and must maintain viewpoint neutrality.

Likewise, a public college or university can create, apply, and seek to preserve content-based restrictions that define and limit the range of subjects discussed in the forum

e the extent to which the government can regulate speech within it. The Supreme Court has labeled such spaces forums, and has recog

Speech transmitted through social media is subject to the same general First Amendment protections as any other kind of speech

including threats of harm, incitement of imminent illegal actions, defamation, obscenity, and fighting words—are not protected.

2The First Amendment states, in part, that “Congress shall make no law . . . abridging the freedom of speech.”

1SOCIAL MEDIA ON CAMPUSThe presence and importance of social media in the modern higher education institution requires campus leaders to think proactively about best practices in establishing and managing these platforms—and how to respond to the problems that will arise when these platforms are misused. For public colleges and universities and for private institutions that adopt the First Amendment’s requirements as their own obligations, under-standing how courts are likely to apply the First Amendment to social media speech and expression is essential to effective management of this challenging terrain.Four sections shape this brief: 1) The types of forums where government actors can regulate speech 2) Select frequently asked questions on free speech and social media use in higher education3) Three case studies and potential implications for higher education4) Considerations for aligning social media policies and free speech rights

The First Amendment protects individuals from government censorship. Social media platforms are private companies, and can censor what people post on their websites as they see fit. But given their growing role in public discourse, it’s important to ask ourselves–what exactly are their censorship policies? How do they compare to each other, and to the First Amendment’s protections?