This is the Kato Daily Podcast for Monday, July 3rd,

2003.

I'm Caleb Brown.

What takes mere words outside the realm of constitutionally

protected speech.

The Supreme Court has recognized a true threat exception,

but in the case of Counterman v. Colorado,

the court seemed reluctant to expand that exception and wrestled over what standard should apply in

determining what constitutes a true threat. He does Jay Schweiker discusses the case.

Jay the court has handled questions that are similar to this fairly recently, that is, true threats and

what kinds of threats and what kinds of language that really seem like threats, the First Amendment does not in fact

protect. So if you don't mind, can you give us a sense of what the state of play was before this case?

Sure, I mean everyone agrees that so-called true threats are outside of the scope of

First Amendment protection. That principle itself has never really been in dispute.

Probably the most significant recent decision from the court is Virginia versus Black, which

was the case involving Virginia's cross-burning statute.

Virginia had basically passed a law saying,

it is illegal to burn a cross with the intent to intimidate someone,

and oh, by the way, burning a cross itself will be prima facie evidence of

intent to intimidate and so what the court said in holding that statute unconstitutional

under the First Amendment is yes you could

prohibit burning across with the intent to intimidate because that would be a

...