Free Speech, True Threats, and Holding Officials Accountable

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The First Amendment is the cornerstone of American democracy.

It guarantees citizens freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government for a redress of grievances. It doesn’t promise that speech will always be polite, agreeable, or easy to hear. In fact, it protects the opposite: expression that society might find offensive, controversial, or disruptive.

And these days, it increasingly feels like it’s under attack.

So where does our first amendment protection end? And how do courts draw the line between heated speech and true threats?

What Counts as a “True Threat”?

The U.S. Supreme Court in Virginia v. Black (2003) defined true threats as “serious expressions conveying that a speaker means to commit an act of unlawful violence.” Importantly, context matters: tone, audience, medium, and circumstances shape whether words are threats or protected speech.

Later, in Counterman v. Colorado (2023), the Court acknowledged how online speech complicates this analysis, without tone or facial cues, a heated remark can be misread as a threat. To avoid chilling constitutionally protected speech, the Court held that the state must prove a defendant understood, or at least should have understood, their words could be taken as threatening. Like a death threat.

Offensive ≠ Criminal

The Court has repeatedly reinforced that offensive or disagreeable ideas remain protected. In Texas v. Johnson (1989), Justice Brennan wrote: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

This principle is especially important for dissent. As Justice Sotomayor reminded in Counterman, “heated speech is not a crime.”

Speech-Integral-to-Criminal Conduct

There are narrow exceptions. For example, speech integral to criminal conduct, like threats used in stalking, can be restricted. But courts tread carefully here. In Elonis v. United States (2015), the Court stressed that wrongdoing must be conscious; people can’t be punished for words absent intent.

The Buchanan decision clarified this further: while harassment of private individuals may be enjoined, speech about public figures or matters of public concern remains highly protected. In other words, you can’t criminalize criticism of government officials under the guise of stalking laws.

Why Public Officials Must Face Criticism

By law, public officials are elected, appointed, or delegated actors of power. Their actions are subject to scrutiny because they wield authority over the public. In Rosenblatt v. Baer (1966), the Court made it plain: criticism of government must be free, “lest criticism of the government be penalized.”

Similarly, Gertz v. Welch (1974) recognized that individuals who purposefully inject themselves into public controversies become public figures for that issue. When the matter involves governance, corruption, or misuse of power, speech targeting officials receives the highest constitutional protection.

The Stakes for Democracy

The danger today is clear:

• Overly broad restrictions on “threatening” speech risk criminalizing dissent.
• Citizens may stay silent out of fear of retaliation, losing their constitutional right to petition for redress of grievances.
• Politicians can weaponize laws meant for stalking or harassment to shield themselves from accountability.

As Snyder v. Phelps (2011) put it, speech about government operations is a matter of public concern and therefore lies at the very core of the First Amendment.

Pulling It All Together

We cannot allow government actors to conflate criticism with criminal conduct. We cannot allow “true threat” standards to morph into tools for silencing healthy dissent. And we cannot allow prior restraint to chill speech before it begins.

The Constitution protects dissent because democracy requires it. Writing, speaking, protesting, are how citizens hold power to account.

The moment we blur the line between heated speech and true threats, we risk trading democracy’s lifeblood for authoritarian silence.