David L. Hudson Jr. at the First Amendment Center analyzes the Supreme Court’s jurisprudence on "true threats" and the ways in which lower federal courts have interpreted it. This is an important topic worthy of extensive discussion, as college administrators are often too willing to punish constitutionally protected speech under the rationale of addressing and preventing threats, intimidation, and violence.
Hudson notes that the Supreme Court directly addressed what constitutes a true threat in Virginia v. Black, 538 U.S. 343 (2003). In that case, Justice O’Connor’s plurality opinion defined true threats as "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." It clarified that a speaker "need not actually intend to carry out the threat. Rather, a prohibition on true threats protects 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" (internal quotations omitted). It also defined intimidation, in the constitutionally proscribable sense, as "a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death."
Black is an important decision providing much-needed guidance in this area of the law, but, as Hudson writes, federal courts have differed in their application of its standards:
Some courts have determined that in order for speech to constitute a true threat, the speaker must subjectively intend to threaten someone. This doesn’t mean that the speaker must actually intend to carry out the threat. It does mean, however, that the speaker must subjectively intend that his or her comments be interpreted as a true threat.
However, other courts interpret Virginia v. Black as requiring only that the speaker knowingly intended to communicate to another person. These courts do not require that it be proven that the speaker subjectively intended to threaten someone. Rather, they focus on whether there was an intent to communicate and whether an objective or reasonable recipient would regard it as a serious expression of harm.
Hudson provides examples of both approaches: the Ninth Circuit applied the subjective intent test in United States v. Cassel, 408 F.3d 622 (9th Cir. 2005) (pdf), whereas the Fifth Circuit applied the objective recipient test in Porter v. Ascension Parish School Board, 393 F.3d 608 (5th Cir. 2004) (pdf).
Unfortunately, college administrators have demonstrated a propensity to censor and punish much student expression under the rubric of true threats and intimidation, when the speech involved in fact does not come close to qualifying under either the subjective or objective test. Under both tests—which concern the intent of the speaker—a statement must be understood by a reasonable person as expressing intent to commit unlawful violence in order to qualify as a true threat. Even if a person sincerely believes he or she is being threatened, if that belief is unreasonable, the statement is not, constitutionally speaking, a threat. Yet colleges and universities have taken the exact opposite approach. The Wall Street Journal recently reported on this continuing problem, quoting FIRE President Greg Lukianoff:
"Right now, if a university administrator claims that someone is a threat, even if that threat is virtually unsupportable and completely unreasonable, they have carte blanche to do what they want," says Greg Lukianoff, president of the Foundation for Individual Rights in Education.
Within the past year, FIRE has seen several instances in which administrators abused the rationale of preventing threats, intimidation, and violence. At Valdosta State University (VSU), student T. Hayden Barnes was expelled for peacefully protesting the school’s decision to construct parking garages on campus. Barnes’s protest took the form of an innocuous cut-and-paste collage on the website Facebook.com, yet somehow VSU President Ronald M. Zaccari construed it as Barnes presenting a "clear and present danger" to both Zaccari himself and to the campus as a whole.
At Colorado College (CC), meanwhile, two students were found to have violated the school’s conduct code regarding "violence" after they published a satirical flyer. The flyer parodied another campus publication and included references to "chainsaw etiquette," the shooting range of a sniper rifle, a quotation regarding a sexual position from the website menshealth.com, and a quotation about "female violence and abuse" of men from the website batteredmen.com. According to CC, this "juxtaposition of weaponry and sexuality" in an anonymous parody made other students subjectively feel threatened, leading to CC’s finding on the "violence" charge.
Finally, Troy Scheffler, a student at Hamline University, was placed on immediate suspension for opining, in two private emails, that upholding concealed carry rights on campus would prevent school shootings. Not only did Hamline determine that Scheffler posed a threat to the campus community on the basis of these opinions, it did so without affording him any type of hearing. Moreover, it stipulated that he could not return to school unless he submitted to a "mental health evaluation."
The news is not all bad, however, as demonstrated by another FIRE case, this time at San Francisco State University (SFSU). In an important decision striking down parts of SFSU’s unconstitutional speech code, U.S. Magistrate Judge Wayne Brazil declined to enjoin the enforcement of another provision prohibiting "[c]onduct that threatens or endangers the health or safety of any person within or related to the University community, including physical abuse, threats, intimidation, harassment, or sexual misconduct." He did so only under the understanding that "the structure of the challenged provision, viewed as a whole, suggests that it was not intended to proscribe ‘intimidation’ or ‘harassment’ in whatever form ‘intimidation’ or ‘harassment’ might take, but only the sub-category of intimidation or harassment that ‘threatens or endangers the health or safety of any person.’" Significantly, this meant that the provision could not be applied against a student who merely engages in expressive behavior with no intent to threaten or endanger the health or safety of another person. This represents an appropriately narrow approach to the issue, one that colleges and universities would be wise to follow.