Throughline - The shifting line between free speech and a criminal threat

Episode Date: June 11, 2026

Threats against public officials have become much, much more common. This includes everyone from the president of the United States to members of Congress, to state and local officials, and even civil servants like local librarians. Threats have always been a part of United States history, often manifesting in times of political turmoil or cultural tension. The internet age opened a new chapter in the U.S. making threats easier to make and harder to trace and prosecute. So what exactly is the standard for defining a criminal threat? How has it changed? And how do we balance safety and free speech in a world where the two seem increasingly at odds? On this episode of Throughline, the shifting line between protected speech and true threats.Guests:David L. Hudson, Jr., associate professor of Law at Belmont University Law School and First Amendment fellow for the Freedom ForumMary Anne Franks, professor at The George Washington Law School, and author of Fearless Speech and The Cult of the ConstitutionSupport shows like Throughline with NPR+. Sign up today at plus.npr.orgSee pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences.NPR Privacy Policy

August 27, 1966. A group of mostly teens and men in their early 20s met in Washington, D.C. Right on the Washington Monument Grounds near the Sylvan Theater. They were part of the W.E.B. De 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. They were really protesting the Vietnam War and the racially disparate use of the draft. Black men were only 12% of the U.S. population, but they made up over 30% of the ground combat battalion troops in Vietnam. There was a discussion group about police brutality.

And in that group, there was one man named Robert Watts, who made an off-the-cuff comment. And allegedly, Robert Watts, who was 18 years old at the time, I said something to effect, you know, look, if they make me go fight in Vietnam, the first person I'm going to put in my scope is LBJ, they're not going to make me go kill my black brothers. LBJ, the president at the time. Yeah, LBJ for Lyndon Baines Johnson, the president of the United States. 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. When he made that statement, everybody just laughed. But there was someone in the crowd who didn't think it was funny, an investigator with the U.S. Army. You know, scope, president, LBJ, oh my gosh, that's a threat. Over the past few years, threats and harassment against public officials had 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. Minneapolis man is facing federal and state charges following this week's attack on Democratic Congresswoman Ilhan Omar, who was sprayed with liquid at a town hall event. The state and local officials. There have been some threats, right, both political and personal to Indiana lawmakers. And even civil servants, like local librarians. This Livingston Parish librarian asked not to be identified. Because they will fire me in a heartbeat.

Threats have always been a part of U.S. 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 U.S., 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 Randabed Fetach. On this episode of ThruLine from NPR, we're going to tell you the stories of the people who have towed the line between protected speech and true threats.

Hi, my name is Nina Nabizadeh from Battleboro, Vermont, and you're listening to ThruLine from NPR. Part 1, Watts versus United States. 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. We're a free speech outlier in the world. This is David L. Hudson, Jr. I'm an associate professor of law at Belmont University Law School in Nashville, Tennessee. And he's a First Amendment Fellow for the Freedom Forum. 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. If they ever make me carry a rifle the first man I want to get in my sight, is LBJ. 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. And Robert Watts wasn't the first person to have gotten in trouble for saying something about the president. 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 Act since 1798. Luther Baldwin was a patron in a bar.

Who was drunk. President Adams is coming in a procession. A ceremonial cannon salute was planned for the president. And Luther Baldwin allegedly, in nothing more than a drunken rant, said, If they fire at President Adams, they fire through his arse. And he ends up getting prosecuted for violating the Alien and Sedition Act of 1798. 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 days. 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. I think there were multiple reasons why the 60s became this flashpoint for the First Amendment. This is Marianne Franks. 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. And she's written a couple of books about the First Amendment, which we'll share with you in our show notes. 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. As part of those tensions, the U.S. government assigned a special unit of the military,

called the Army Counterintelligence Corps, whose job was to monitor protests. 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 was just protesting the kind of efforts that the federal government says we have to be involved in. So that's how an army officer overheard Robert Watts. You've got an investigator from that unit who was monitoring these anti-war protests that are happening on the Washington Monument. And that's how all this kicks off. 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 two-to-one 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? Essentially what Judge Wright is saying is that we've got to allow breathing space for critical speech. 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 game. guarantee of free expression.

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? And that's what was on the court's mind when it took up the Watts case the following year. 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. 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. 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. And that's because just a few years before Watts, the Supreme Court had decided another big free speech case, the New York Times v. 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. 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. So when they looked at the Watts case and the Justice Wright opinion, which laid out the context in which Robert Watts made his comments, it was pretty open and shut. The Supreme Court on April 21st, 1969, issued its ruling.

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. The court focused on what we have now come to refer to as the so-called watch factors. One was the context in which the statements were made. A group of activists in a political discussion group.

Then there was number two. That the threat was not unequivocal. It was very conditional, right? If they draft me 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 as serious.

attempt to assassinate the president. It was a jest. The U.S. Supreme Court ruled in favor of Robert Watts. 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 sorted, 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. Watts' conviction was overturned and he was acquitted. What precedent does the Watts case set? What the Watts case established is it actually uses the term true threats. And it says true threats are an understatement. unprotected category of speech. So true threats would enter the legal lexicon, like certain obscenities or libel or fighting words. 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. Coming up, what happens when speech is about people who aren't elected? What the U.S. Supreme Court recognized is not all cross-burnings are the same. How white supremacists help define true threats. This is Abdul from home Syria. You're listening to ThruLine from NPR. Part 2. Virginia versus Black. In 1969, the Supreme Court decision, Watts v. United States,

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. 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. 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.

In one case, you had a guy by the name of Barry Elton Black. What we had in the case of Barry Black was he heard that, he heard that down in Carroll County, blacks and whites were holding hands on the sidewalk. He was a local clan leader. This is 1998 in Virginia, not during Jim Crow. 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.

And he burned across with the permission of the property owner on a piece of land that was right near a state highway. And they burned it at night. with a loud speaker and talk about taking a 30-30 and randomly... That was that... 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.

There were about 25 to 30 people there, and she was horrified to see these people in clan hoods. Barry Black was arrested for violence. 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. That was one case. The other case involved two individuals, Mr. O'Mara and Mr. Elliott. In May 1998, Richard Elliott and Jonathan O'Meara,

attempted to burn across on the lawn of Elliott's neighbor. By the name of James Jubilee. James Jubilee was a black man who had moved next door to Richard Elliott. And Mr. Elliott 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 him in the backyard. Elliot's mom said he shot firearms as a hobby. The backyard was a shooting range.

On May 2nd, 1998, Elliot and Omerah drove a truck onto Jubilee's property. They planted across 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? whether this statute itself, which criminalizes burning of a cross with an intent to intimidate others, does it violate the First Amendment? And at the core of that question and what was debated in the court was what does the action of burning a cross mean?

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. Dreben, aren't you understating the effects of the burning cross? Why is that profoundly unusual? I don't think he had spoken in six to eight years. Wow. At a Supreme Court argument.

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. 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 clan and the Burning Cross being a tool, a tool used in lynching. 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 threat? Even if we 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 is meant to intimidate you 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.

And my fear is, Mr. Dreben, that you're actually understating the symbolism of an effect of the cross. It was really a profoundly significant moment that Clarence Thomas spoke. But it wasn't the only factor they considered. The Supreme Court announced its ruling the following spring on April 7, 2003. 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. And ultimately what the U.S. Supreme Court recognized is not all cross-burnings are the same. Not all cross-burnings are the same.

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. 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 clan identity. The court said those two scenarios are different. Sometimes people burn crosses as a real intent to intimidate as a tool of terror, like what Elliott and Omar 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. Well, because historically, it would mean they're going to come and potentially lynch you. Exactly. And that's very different, though, than what Barry Elton Black did. Barry Elton Black burned across as part of a clan meeting as sort of this shared group ideology. 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. 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 the watch decision did not do. 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? Hello, I'm Victor of the National of Mexico. So, Felicesteris for the Supreme PIR's People's Choice Awards. And you're listening to Throne from NPR. Part 3.

Counterman v. Colorado. The cases that followed the Supreme Court's 2003 ruling on cross-burnings, that their true threats in some cases, protected political speech and 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? 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. 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. They're a chant, white power, white power, white power. 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. 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. 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 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 suggests that maybe that means that some of the standards have to be changed. Because when the laws don't change, people take advantage. 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. And the context around speech online would play a role in another pivotal moment for defining true threats. The story here begins in 2014. Billy Raymond Coutermott. He's a man from Colorado. and he becomes obsessed with this local musician, Coles Whalen. It's 2010 and I am touring nonstop after my first release on iconic records. This is Waylon, who has shared her story publicly on social media. At the time when this was happening, Coles Whelan, 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 there was a man who was already 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 him. 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. 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. A lot of them are very, um, I would think they were threatening if I was CW, right. 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 performance. 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 it. Where is 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 a counterman and discovered that he had been convicted for making threats against female family members of some years prior. And these were really, really violent threats. And then she got very scared and decided to report it to the police. 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.

And he then challenges that on First Amendment ground saying the only way that the state is allowed to convict him for stalking is if he intended for his recipient to feel that take. as opposed to it being the kind of thing a reasonable person would experience as terrifying. Billy Counterman, who was diagnosed with a mental illness, was arguing that he was innocent because he didn't intend for Coles Whalen to feel terrorized. The court uses the counterman case as the vehicle to answer that unanswered question. 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? Our precedent demands that the state make a showing about what the defendant had in his mind. The Supreme Court in its 7-2 decision read by Justice Elena Kagan ruled in favor of Billy Counterman. His conviction was overturned. And we do that again here to ensure that the prosecution of unprotected speech doesn't work to chill, valuable protected expression. And essentially what the U.S. Supreme Court said is probably, prosecutors have to show you acted in conscious disregard as to whether your statements would be

considered threatening. 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. 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.

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

50-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 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? 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. Do you think there might be some Wattses in the mix of that? I do. I think there will be a few Wattses in the mix of it. I think that unfortunately, um, important. imprecision occurs. And when you have

overzealous prosecutors, sometimes they'll target people who really did not intend their statements to be threatening. 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? 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 in too troubled souls and that people do engage

and 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, 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? 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. 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 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,

oppressing 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. That's it for this week's show. I'm Randauddin Fettah. Throughline was created by me and Ramtin Anna Blue. This episode was produced by me and Sarah Wyman. Casey Minor. Christina Kim. Devin Katayama. Kiana Muratem. Irene Noguchi. Leanna Simstrom. Julia Redpath. Skyler Swenson. Fact-checking for this episode was done by Kevin Vocal.

Thanks also to Johannes Durgy, 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 includes... Navid Marvie. Show Fujiwara. Anya Mizani. And finally, if you have an idea or liked something you heard on the show, please write us at throughline at npr.org. And if you're open to us giving you a call back, leave your number two.

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.