What's the Legal Difference Between Threatening Speech and Free Speech? | Criminal Threat Defense Attorneys, Wichita, KS

WICHITA, Kan., Nov. 12, 2025 /PRNewswire/ -- Words have power. A heated comment, an angry post on social media, or a moment of frustration can sometimes spiral into something far more serious, resulting in criminal charges. But when does free speech cross the line from protected expression to a criminal threat? Our criminal threat defense attorneys in Wichita, Kansas, at the McConnell Law Firm, are breaking down how the law distinguishes free speech and criminal threats, as well as what Kansas statutes actually say. Before assuming your words are protected, keep reading.

Free Speech

The First Amendment of the United States Constitution protects a broad range of expression, everything from political opinions and unpopular beliefs to offensive or controversial statements. Simply put, you are free to speak your mind, even if what you say makes others uncomfortable or angry. However, this protection is not unlimited. Courts have identified certain categories of speech that fall outside First Amendment protection, such as obscenity, defamation, incitement to violence, and what are known as "true threats." These true threats must reasonably cause someone to fear for their safety.

Let's See an Example:

Someone jokes that "the President should die," but there's no genuine intent or fear for the President's safety. In this context, the statement (while it may be inappropriate) is likely protected as free speech rather than an actual threat.

Threatening Speech

Under Kansas law, the line between free expression and criminal behavior is drawn by K.S.A. 21-5415, which defines a criminal threat as:

• A threat to commit violence with the intent to place another person in fear, or
  
  
• A threat made to cause evacuation, lockdown, or public disruption, or
  
  
• A threat to contaminate food, water, or other substances.

If the threat leads to an evacuation or public disruption, the charge can be elevated to aggravated criminal threat, a more serious offense. A basic criminal threat is classified as a severity level 9 felony, while an aggravated criminal threat is classified as a severity level 5 felony. Both of these classifications carry the potential for significant penalties, including prison time and a lasting criminal record.

An Important Note

The Kansas Supreme Court has struck down portions of this statute in recent years. In State v. Boettger, the Court ruled that the section allowing convictions for "reckless" threats was unconstitutional, as it criminalized speech that might not be intentionally threatening. As a result, Kansas prosecutors must now prove intent when pursuing a criminal threat case. This reinforces the importance of context and state of mind in distinguishing between criminal threats and constitutionally protected speech.

"Everybody has the right to free speech with limitations," said Jonathan W. McConnell, founding criminal threat defense attorney at the McConnell Law Firm. "While you're free to discuss political or religious beliefs, you cannot make certain threatening statements where people reasonably fear for their safety. The distinguishing factor between free speech and threatening speech is the intention to communicate a threat."

Let's See an Example:

Someone near the President seriously states that they intend to kill the President, causing reasonable fear for the President's safety. In this case, the statement would likely be considered a criminal threat (not protected free speech) and could result in serious criminal charges.

The Fine Line

So, what actually separates a criminal threat from protected speech? The answer depends on intent, context, and perception. Courts often look at questions like:

• Was the statement meant literally or made in anger, jest, or exaggeration?
  
  
• Would a reasonable person interpret the words as a serious expression of intent to harm?
  
  
• Did the listener genuinely fear for their safety?

Because these distinctions can be subtle, allegations of threatening speech often hinge on context, tone, audience, timing, and even prior relationships between the people involved.

"It's important to remember that constitutional rights are not absolute," said McConnell. "The judicial branch is the ultimate arbiter of the Constitution and defines the limitations upon that. This can always change depending on the makeup of the court and its opinions or interpretation."

Have You Been Accused?

Are you facing criminal threat charges? We encourage you to contact the McConnell Law Firm as soon as possible. While every case is different, and no conclusions should be drawn without first consulting an experienced criminal threat defense attorney about the specifics of your case, it is always in your best interest to have a skilled attorney by your side from the beginning.

Request a Free Consultation

Do you or a loved one need the assistance of one of our criminal threat defense attorneys in Wichita? We encourage you to contact the McConnell Law Firm at (316) 243-5903 for a free consultation.

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SOURCE McConnell Law Firm