It is sometimes difficult to accept that in many public places outside the high school, the right to speak any vile, offensive, or even racist viewpoint is protected by the First Amendment. However, speech that constitutes a "true threat" or that is likely to cause immediate unlawful conduct is not legal or protected by the First Amendment. True threats may be reported to law enforcement or combatted by civil lawsuit, and schools must treat such threats as illegal.
Case Study: Helmann v. CodePink Women for Peace, No. 2:24-cv-05704-SVW-PVC, 2025 U.S. Dist. LEXIS 219090, 2025 WL 3030582 (C.D. Cal. June 13, 2025)
In this case, the court held that CodePink's social media post claiming that Israel was building illegal settlements was not protected by the First Amendment. This is quite significant, because this is a rare exception from the general rule that nearly all speech on matters of public concern is legal.
That CodePink's post alleged Israel is stealing Palestinian land was not the reason it was illegal. It was illegal because it was a true threat against a synagogue. Using inverted red triangles, similar to those used by Hamas, combined with the synagogue's address, the speech satisfied the criteria for being a true threat.
The post encouraged "protesters" to convene on a small synagogue event that advertised homes for sale in Israel, trying to portray it as an international "war crime." Of course, presentations discussing moving to Israel are common at synagogues because performing Aliyah (a central tenet of Judaism) involves moving to Israel. Naturally, people moving to Israel are interested in the availability of homes there. There are tens of thousands of licensed real estate agents in Israel, so they are highly likely to visit the United States to discuss what is for sale.
As of summer 2024, few had heard of using the "FACE Act" to protect synagogues. Our community should become familiar with this important law, the Freedom of Access to Clinic Entrances Act (the "FACE Act"), 18 U.S.C. § 248. The FACE Act makes it a crime and civil violation to block the entrance to a synagogue. Anyone who, by force, threat of force, or physical obstruction, intentionally injures, intimidates, or interferes with a person exercising the right of religious freedom, faces liability.
Since individual rioters are difficult to identify, Plaintiffs filed suit against the organization CodePink for instigating the protest that blocked the synagogue. CodePink moved to dismiss, but the court denied the motion because the challenged social media posts that placed the synagogue's address inside the inverted red triangle plausibly constituted a "true threat." The court held:
- A true threat is "a statement which, in the entire context and under all circumstances, a reasonable person would foresee would be interpreted" as "a serious expression of intent to inflict bodily harm." (quoting Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1058, 1071 (9th Cir. 2002)).
- A threat need not be explicit. "[A] statement that does not explicitly threaten violence may be a true threat where a speaker makes a statement against a known background of targeted violence." (citing Virginia v. Black, 538 U.S. 343 (2003)).
Why This Violates the Law
A true threat is not protected speech: The First Amendment does not protect true threats. A true threat is a serious expression of intent to inflict bodily harm, judged by how a reasonable person would understand it in full context. The threat need not be explicit, need not name a specific date, and need not be delivered directly to the victim. A symbol with a known violent meaning — placed against a background of targeted violence — can be a true threat just as words can. Planned Parenthood, 290 F.3d at 1071, 1075; Virginia v. Black, 538 U.S. 343 (2003).
The test is the effect on the listener, not the speaker's label: Whether speech is a true threat is judged objectively — by how a reasonable person, aware of the full context, would understand it — not by how the speaker characterizes it. A threat does not become protected speech because it is dressed in the vocabulary of activism or social justice. Calling a post "protest," "resistance," or "political art" does not change what it communicates to the Jewish family whose synagogue address sits inside a Hamas target symbol, or to the Jewish student who is told that the violence "is coming here next." Coded language, euphemism, and movement slogans can all carry a true threat when, in context, a reasonable listener would understand them as a serious expression of intent to do harm. The question is always what the statement conveys to the person on the receiving end — not the gloss the speaker puts on it.
The line between threats and political speech: Not every alarming or offensive statement is a true threat. Vague political slogans, conditional grievances, and "mere advocacy" of force are protected. Watts v. United States, 394 U.S. 705 (1969); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927 (1982). What separates a true threat from protected speech is specificity and context: a statement that singles out an identifiable person or place, made against a known background of violence, crosses the line. When a student tells a specific Jewish classmate that "Hitler didn't finish the job," or posts the kind of target symbol at issue in Helmann aimed at a specific Jewish student or Jewish space at school, that is not political debate — it is a threat.
Title VI and school discipline: When a threat is directed at Jewish students because they are Jewish, Israeli, or Zionist, it is also part of a hostile environment under Title VI. A school that has actual knowledge of threatening conduct and responds with deliberate indifference can be held liable. And because a true threat is not protected speech, the school's usual hesitation about disciplining "political" expression does not apply — the school has both the authority and the obligation to act.
What families should take from this: Document the exact words, symbols, or images used, who communicated them, when and where, and whether they singled out your child or an identifiable Jewish space. Preserve screenshots of any online posts before they are deleted. Note any prior incidents that supply context, and report the threat to the school in writing. A threat is the most serious category of conduct in this guide; treat it as such, and make clear to the school in writing that you regard it as a threat — not merely as offensive speech.