Prof. Laura E. Little and Maxwell Klenk (Temple University School of Law)
While the First Amendment of the United States Constitution prevents the government from restricting expression based on its ideas or subject matter, this protection does not extend to all speech. First Amendment case law excludes some speech from its protective domain, one exclusion being “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,” known as a “true threat.”
Something unlawful (and thus outside First Amendment protection) can also be funny. Accordingly, those inclined to crack jokes about harm to others would wisely acquaint themselves with separating the unlawful from the merely funny. Below are some tips coming from U.S. case law.
Context is critical to identifying an utterance as a true threat. This poses a challenge for those who use threatening language in attempts at humor, particularly when jokes are made online or in a deadpan manner. The interplay between humor and the fact-specific nature of true threat analysis is illustrated by a decision rendered by a federal appellate court: Bailey v. Iles, 87 F.4th 275, 283 (5th Cir. 2023).
In March 2020, Waylon Bailey aimed to “make light of” the COVID-19 lockdowns online by posting a message on Facebook urging his friends to “share” news that the “Rapides Parish Sheriffs [sic] Office” has been ordered to “shoot” anyone infected with COVID-19 “on sight.” Id. at 280–81. He concluded the message by claiming “Lord have mercy on us all” and added two hashtags: “#Covid9teen” and “#weneedyoubradpitt.” Id. at 280. Bailey meant the post as a joke, and he included the “#weneedyoubradpitt” tag to reference actor Brad Pitt’s role in the zombie movie World War Z.
In response, the Rapides Parish Sheriff’s Office (RPSO) sent Detective Randell Iles and deputies to Bailey’s house and arrested him for “terrorizing.” Bailey filed a civil lawsuit against both Iles and the sheriff for his arrest, claiming they violated his First Amendment rights. The district court, however, decided to immunize Iles and the sheriff from this lawsuit.
The appellate court reversed, holding that Bailey’s post –taken at face value–was not a threat. The court reasoned that even if the post could “be considered a ‘threat’ directed to either the public … or to RPSO deputies,” the post was not a true threat because “it lacked believability and was not serious” when considering context, as “evidenced clearly by calls for rescue by Brad Pitt.”
The court supported its holding by distinguishing Bailey from its prior decision, United States v. Perez, in which a man had jokingly claimed on Facebook that he hired his cousin to lick items in two grocery store locations during the COVID-19 pandemic. Since one of the locations was targeted as “next,” and the actions would have placed people at risk, the court determined the post was a true threat. Contrasting Bailey’s post including references to Brad Pitt, the court concluded that “Bailey’s absurd post [was] entirely different from the believable threat in Perez.”
State high courts also rely on context and believability In J.S. v. Manheim Township School District, the Pennsylvania Supreme Court used a “two-part inquiry” that involved examining the content of speech before “assessing relevant contextual factors surrounding the speech.” 263 A.3d 295, 317 (Pa. 2021). In J.S., a high-school student made two memes that depicted a classmate as a school shooter and sent them to a friend on Snapchat. The recipient then posted the memes to his Snapchat account. The school district suspended the creator under its Terroristic Threats/Acts policy, but when the student challenged the punishment in a civil lawsuit on First Amendment grounds, lower state courts deemed the speech protected—and not a true threat.
Affirming the lower courts, the Pennsylvania Supreme Court noted that while “the actual words employed in the memes” suggested gun violence, context revealed the memes as “sophomoric and misguided humor” that merely stated opinion. The court considered the limited distribution of the memes, the memes’ construction “as a fictional message of a third party threatening violence,” and “[t]he lack of a direct, indirect, or even implied victim.”
Similarly, in Haughwout v. Tordenti, the Connecticut Supreme Court used a threat’s “entire factual context” to determine whether it met an objective standard of believability. 211 A.3d 1, 9 (Conn. 2019). When a student from Central Connecticut State University was expelled for frequently making jokes about school shootings and naming a student as his “number one target,” he challenged his expulsion in a civil lawsuit on First Amendment grounds. Because the student often bragged about his “access to firearms and ammunition”—sometimes with photographic evidence—“the totality of [his] comments and gestures” were deemed “to be a true threat of gun violence.”
What is to be gleaned from these examples? Evaluating whether a statement is a true threat rather than frolicky hyperbole involves highly fact-specific inquiry. What is the advice for an aspiring humorist or an everyday wise cracker? First advice: throw in some off-the-wall facts, or something ridiculous or unbelievable. A reference to a random movie star, perhaps? Next: Manipulate the context to enhance its non-threatening vibe. What kind of context works as a buffer? Limit the audience. Absolutely do not mention a time or a place for the threat to become real. Ensure the audience is not especially vulnerable.
Finally: Remember that something does not need to be comically hilarious for a court to sort it down the humor chute rather than the “actually threatening” chute. Beyond that, threading the needle between provocative humor and threatening language in the United States may depend on geographical difference and the predilections of the fact finders. But it might also depend on unpredictable factors. Indeed, some folks find great offense, threat, or fear in what others identify as harmless foolishness, mildly amusement, or even hilarity. Such is humor’s mystery.