How have the lower courts handled the question of true threats?
The lower courts have handled true-threat cases in different ways. Most courts have adopted something called the “objective test.” Basically, it “focuses on whether a reasonable person would interpret the purported threat as a serious expression of an intent to cause a present or future harm” (United States v. Dinwiddie 76 F.3d 913 (8th Cir. 1996).) One problem with this test is that different circuits use different “actors” as the reasonable person. Some use the reasonable-speaker test and ask “whether a reasonable person standing in the shoes of the speaker would foresee that the recipient would perceive the statement as a threat.” Other circuits use a reasonable-recipient test where the question is, would a reasonable person in the recipient’s place view the statement as a threat. The last objective test is the reasonable-person test where it is asked, would a reasonable third party, hearing the statement, interpret it as a threat.
In addition, some circuits have also tacked on a “subjective” element to the test where courts seek to determine the intent of the speaker. Courts will try to determine whether the speaker intended his statement to be a threat, regardless of intent to carry out the threat. An additional subjective element, trying to determine whether the speaker intended to actually carry out the threat, has fallen out of use and is no longer considered in true-threat cases.
In Dinwiddie, the 8th U.S. Circuit Court of Appeals developed a list of factors to determine if a statement would be interpreted as a true threat. The 8th Circuit wrote, “the reaction of the recipient of the threat and of other listeners, whether the threat was conditional, whether the threat was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim in the past, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence. This list is not exhaustive, and the presence or absence of any one of its elements need not be dispositive.”