Under Watts v. United States, 394 U.S. 705 (1969) (per curiam), the First Amendment does not protect "true threats." Federal courts of appeals and state high courts are deeply divided over the legal standard for determining whether a statement is a true threat. A majority of courts have held that the standard is objective and requires a showing that a "reasonable person" would regard the statement as a sincere threat of violence. But other courts have held that the standard is subjective and assess only whether the speaker intended to communicate such a threat. This Court granted certiorari to address this issue in Elonis v. United States, 135 S. Ct. 2001 (2015), but did not resolve the split, prompting concern that "the Court has compounded—not clarified—the confusion," id. at 2014 (Alito, J., concurring and dissenting).

A divided Pennsylvania Supreme Court below acknowledged this split and joined the short end of it, holding that a statement can constitute a true threat based solely on the speaker's subjective intent. The court thus affirmed petitioner's convictions for terroristic threats and witness intimidation based on a rap song that petitioner, a rap music artist, wrote and recorded. The court below found it irrelevant whether a reasonable person would find the song threatening in context.

The question presented is whether, to establish that a statement is a true threat unprotected by the First Amendment, the government must show that a "reasonable person" would regard the statement as a sincere threat of violence, or whether it is enough to show only the speaker's subjective intent to threaten.

Whether a 'reasonable person' standard or a 'subjective intent' standard should apply to determine if a statement is a 'true threat' unprotected by the First Amendment