Threats are not protected speech, but defining what constitutes a threat has been problematic, particularly when it comes to online speech. We start with a look at threats against the US president, beginning with a 1798 prosecution for threatening John Adams, and leading up to the passage in 1917 of the first federal legislation against threatening the president. We will look at WW I-era prosecutions for threatening the president, leading up to a 1969 Supreme Court decision, Watts v. US, distinguishing true threats from protected political speech. And we conclude with two cases of online threats: the prosecution of Anthony Elonis for posting threats on Facebook, and a case where two tourists were denied entry to the US because of joking tweets that were treated as threats by US Border Agents. We conclude that threats, like obscenity, remain unprotected speech, but defining what is and what is not a threat in any particular case remains a problematic, subjective decision.

In August 2017, several hundred white nationalists marched on the small university town of Charlottesville, Virginia. The rally turned tragic when one of the protesters rammed his car into a crowd of counterprotesters, killing 32-year-old Heather Heyer. The Washington Post characterized the protesters as “a meticulously organized, well-coordinated and heavily armed company of white nationalists.”1

In 2009, Facebook CEO Mark Zuckerberg announced that the massive social network would become more democratic. Responding to criticism over controversial changes to its privacy policy, Zuckerberg pledged that from then on Facebook users would have direct input on the development of the site’s terms of service. These terms were “the governing document” for Facebook users across the world, Zuckerberg said; “Given its importance, we need to make sure the terms reflect the principles and values of the people using the service.”1 Facebook committed to ensuring that users would be consulted on any changes to its rules and that the company would in future defer to the popular will of its users through a new voting process.