MBE Rules · Constitutional Law
True Threats
Counterman v. Colorado
The rule
True threats are unprotected, but the First Amendment requires at least recklessness — the speaker's conscious disregard of a substantial risk that the words would be viewed as threatening violence.
In plain English
True threats are statements that express an intention to commit violence and are not protected by the First Amendment. For a statement to qualify as a true threat, the speaker must have acted with at least recklessness, meaning they were aware that their words could be seen as threatening.
Worked example
During a heated argument, Alex tells Jamie, 'I could easily take you out if I wanted to.' Jamie feels genuinely threatened and reports this to the police. The court finds that Alex's statement was a true threat because he consciously disregarded the substantial risk that his words would be interpreted as a threat of violence.
Memory hook
True threats require recklessness — don’t just speak, think about the risk!
The trap
Exams may present statements that sound aggressive but lack the necessary recklessness, leading students to misidentify them as true threats. Students often confuse mere hyperbole or anger with actual threats.
How examiners test it
Questions often involve scenarios where a statement is made in a heated context, prompting students to analyze whether the speaker acted with the requisite recklessness to constitute a true threat.
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