In this article, Azriel explores how the First Amendment protects or does not provide protections to threatening e-mail communications. The article begins by examining seminal U.S. Supreme Court cases that dealt with threatening speech. The factors that provide the First Amendment protections are described, as well as the particular facts of each case and the Court’s findings. Azriel then looks at the Federal Threat Law and the factors that are enunciated in that legislation with regard to the protections afforded threatening communications, in addition to federal court cases that have interpreted the statute. The article then looks at several cases that specifically addressed potentially threatening email and Internet-based communications. Each of the factual backgrounds of these cases is described and the Court’s reasoning in deciding these cases in also provided. Finally, the reasoning of the various cases and statute is applied to a previously decided case, which shows that e-mail threats, in general are not protected, and those cases which are decided that provide for First Amendment protection of e-mail threats, are anomalous.
Joshua Azriel, First Amendment Implications for E-mail Threats: Are There Any Free Speech Protections?, 23 J. Marshall J. Computer & Info. L. 845 (2005)