Free Speech, Fear, and Facebook: The Evolving Boundary Between the First Amendment and “True Threats” in the 21st Century (Online Seminar)

MCLE Credits: 2.0
Ethics Credits Included: 0.0

MCLE Credit: 2.0 (Ethics: 0.0)
Live-Interactive Credit: 0.0
Price: $140 (Includes a downloadable audio version.)
Viewable Through: 2/28/2019


A pre-recorded streaming VIDEO replay of the March 2016 webcast, Free Speech, Fear, and Facebook: The Evolving Boundary Between the First Amendment and “True Threats” in the 21st Century.

Topics covered include:

  • The categorical approach to exceptions to First Amendment protection
  • The multiple definitions of “true threats” between Watts v. United States and Virginia v. Black
  • Whether “true threats” should require that the speaker have the specific intent to threaten or is it sufficient that a reasonable person would find the statement threatening
  • What was and wasn’t resolved involving the definition of “true threats in Elonis v. United States
  • Whether the definition of “true threats” should differ for online speech and more traditional forms of expression

In Watts v. United States (1969), the U.S. Supreme Court established that “true threats” were a category of speech not protected by the First Amendment. But while the Court found that the speech at issue in Watts—a provocative speech at an anti-Vietnam War rally—did not constitute a “true threat,” it declined to provide a definition of what did. For the next three decades, lower courts filled the void with a variety of different interpretations, particularly dividing on the issue of the degree of intent required. In Virginia v. Black (2003), the Supreme Court attempted to delineate the legal contours of this exception to First Amendment protection, this time in the context of a burning cross at Ku Klux Klan rally. But while Black proffered a definition of “true threats,” it did little to settle the question of intent. In 2015, it finally appeared that the Court was going to squarely address the intent required to constitute a “true threat.” But unlike the more traditional contexts of the earlier cases, Elonis v. United States involved speech in a decidedly 21st century context—an alleged threat posted on Facebook.

This program will examine the evolving legal definition of “true threats” and the potential issues raised by its application to speech on the Internet.




Paul Crane, University of Chicago Law School / Chicago, IL
Paul Crane is a Lecturer in Law and Bigelow Teaching Fellow at the University of Chicago School of Law.  In 2007, he graduated from the University of Virginia School of Law and also earned a master's degree in history from the University of Virginia. He was the recipient of the Carl M. Franklin Prize and an executive editor on the Virginia Law Review. Mr. Crane’s scholarly publications include “‘True Threats’ and the Issue of Intent,” published in the Virginia Law Review. He previously served as a law clerk to Chief Justice John G. Roberts, Jr. of the United States Supreme Court and to Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit.  Mr. Crane has also served as a Bristow Fellow in the Office of the Solicitor General of the United States and as an Assistant United States Attorney for the District of Columbia. He worked as an associate at Latham & Watkins LLP in Washington, D.C.  Mr. Crane has also served as an intern with the Thomas Jefferson Center for the Protection of Free Expression.

J. Joshua Wheeler, Thomas Jefferson Center for the Protection of Free Expression / Charlottesville
Joshua Wheeler is an adjunct member of the faculty at the University of Virginia School of Law and the Director of the Thomas Jefferson Center for the Protection of Free Expression.  Located in Charlottesville, Virginia, the Center is a nonprofit, nonpartisan institution engaged in research, outreach, and intervention on behalf of the First Amendment freedoms of speech and press. He is a member of the California, D.C., and Virginia Bars. On behalf of the Thomas Jefferson Center, Mr. Wheeler has authored and co-authored briefs filed in federal and state courts across the country, including the U.S. Supreme Court “true threats” cases of Virginia v. Black and Elonis v. United States. He has been with the Thomas Jefferson Center since 1994 (Director of Programs (1994-99), Associate Director (1999-2010), Director (2011)). Before his work with the Thomas Jefferson Center, Mr. Wheeler was an associate with the law firm of Parker, Milliken, Clark, O'Hara & Samuelian in Los Angeles, California. He received a Bachelor's degree from the University of North Carolina at Chapel Hill, a Master's degree from Hollins College (now University), and a law degree from the University of Virginia School of Law.  Mr. Wheeler is the author of Robert O’Neil: A Tribute, Virginia Law Review (June 2007), and The Road Not Taken: How the Fourth Circuit Reached the Right Result for the Wrong Reason in Snyder v. Phelps, Cardozo Law Review De Novo (Summer 2010).

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