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Dixon & Moseley | Attorneys At Law
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  5. Watch Out!: What You Say (“Threaten”) Can Be Criminal Intimidation – Not Free Speech

Watch Out!: What You Say (“Threaten”) Can Be Criminal Intimidation – Not Free Speech

On Behalf of Dixon & Moseley, P.C. | Oct 3, 2017 | Criminal Law

We have all exercised our First Amendment Right to free speech at some point in time, perhaps even in a tense debate. However, in the heat of the moment, it is important to be aware that “the First Amendment. . . permits a State to ban a ‘true threat’. . . .”1 If this occurs, this is criminal intimidation and can result in arrest and conviction. This blog post explores this limit to help you avoid crossing the line.

Specifically, “where the person making the threat means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group”, the First Amendment does not apply. What is key is not whether the speaker means to carry out the threat, but only whether he intends to place a victim in fear of bodily harm or death.

“Intimidation” is not criminal unless there is a (prior) lawful act that is being engaged in to which the aggressor threatens bodily harm or death in response to this lawful act. In a key case decided by the Indiana Court of Appeal recently, it clarified what constitutes a prior lawful act.2 Specifically, the victim, Mr. Kottcamp was in his house while his wife was on the front porch of their home consoling a neighbor’s wife involved in a domestic dispute.

The neighbor’s husband, Fleming came upon to Kottcamp’s porch, at which time Kottcamp stepped outside to protect his wife, and Fleming threatened to “beat (his) A–“. At trial, Mr. Kottkamp testified that Fleming’s words cause him physical fear. The prior lawful act by Kottcamp was stepping onto the porch to defend his wife; and he was threatened, placing him in fear for his safety or that of his wife, by Fleming’s statement.

Thus, the Court of Appeals affirmed Fleming’s conviction for criminal intimidation. Kottcamp’s act was (lawful) defense of his wife, which resulted in Fleming’s threat that caused him physical fear. The issue on appeal was whether the evidence supported a prior lawful act by Kottcamp that caused a threat rising to criminal intimidation; and the Court of Appeals stated that “it was reasonable to infer from the evidence that Fleming’s actions (threat) were prompted by Mr. Kottkamp stepping out onto his porch” to defend his wife.

Criminal law is very technical in many cases. Had there not been factual inferences that Kottkamp was engaged in a lawful act of coming to the aid of his wife, this conviction may have been reversed or there may have been no conviction at all. You have to show lawful action that results in a threat that causes physical fear to be convicted of criminal intimidation. This is the State’s burden to prove beyond a reasonable doubt. It almost did not in this case.

Thus, it is key with every criminal charge to carefully go through the facts with your defense counsel to determine if there are defenses or if the elements of the crime are met, such as if Mr. Kottkamp was not actually in fear or had not been engaging in a lawful act of coming to the aid of his wife with the threat.

Dixon & Moseley, P.C. attorneys handle criminal cases throughout the State. This blog post is written as general educational material to show the line between free speech and criminal intimidation. Avoid the line and aggressively defend yourself if charged. This blog is intended to provide general educational information and is not intended as legal advice or a solicitation for services. It is an advertisement.

  • Watts v. United States, 394 U.S. 705 (1969).
  • Fleming v. State, 09A05-1703-CR-645 (Ind.Ct.App.2017).
  • How Indiana Courts Divide Retirement Accounts in Divorce

    On Behalf of Dixon & Moseley, P.C. | Apr 21, 2026 | Uncategorized

    Retirement accounts are generally considered marital property to the extent that were earned during marriage. Although retirement funds that accumulated before the marriage are not automatically excluded from the marital property, they can affect how the marital property is divided. 401(k)s and employer-sponsored retirement plans are divided using a Qualified Domestic Relations Order (QDRO), which is a court order directing…

    What Counts as Marital Property in Indiana?

    On Behalf of Dixon & Moseley, P.C. | Apr 19, 2026 | Uncategorized

    Executive Summary Indiana is a “one-pot” property state when it comes to marital property. This means that almost all property owned by either spouse at the time of the dissolution is included. Common types of marital property include property acquired during the marriage, property owned before the marriage, inheritances and gifts, retirement accounts and pensions, businesses, and debts and liabilities.…

    Parenting Time vs. Custody in Indiana: What Parents Confuse Most

    On Behalf of Dixon & Moseley, P.C. | Apr 15, 2026 | Uncategorized

    Executive Summary There are many differences and common misconceptions surrounding custody and parenting time. Custody, which is divided into legal custody and physical custody, deals with who has the authority to make major decisions about a child’s life and where the child primarily lives, respectively. Parenting time refers to the schedule of when each parent will physically spend time with…

    Can Custody Be Modified in Indiana? What Must Change

    On Behalf of Dixon & Moseley, P.C. | Apr 9, 2026 | Uncategorized

    Executive Summary Yes, custody can be modified in Indiana. Courts require a showing that modification of custody is in the best interests of the child and that there has been a substantial change in one or more statutory factors the court looks at when deciding custody. Some common examples of changes that warrant custody modification include a significant change in…

    How Indiana Judges Decide Child Custody—the “Best Interests of the Child” Standard

    On Behalf of Dixon & Moseley, P.C. | Apr 7, 2026 | Uncategorized

    Executive Summary When parents separate or divorce, child custody is often the most emotional and contested issue. In Indiana, judges do not award custody based on gender, income alone, or who “deserves” it more. Instead, courts apply a legal standard known as the “best interests of the child.” Courts consider 8 statutory factors to determine what custody arrangement is in…

    Is Indiana a 50/50 Divorce State? What the Law Really Says

    On Behalf of Dixon & Moseley, P.C. | Apr 5, 2026 | Uncategorized

    Executive Summary The short answer is no, Indiana is not a 50/50 divorce state, but it often starts out that way. Indiana does not require marital property to be divided equally in every divorce. Instead, Indiana follows the rule of equitable distribution, with a presumption that an equal division is fair unless evidence shows otherwise. The court looks at the…

    Step-Parent Adoption: How It Works in Indiana

    On Behalf of Dixon & Moseley, P.C. | Apr 5, 2026 | Uncategorized

    Stepparent adoption grants the same legal rights and responsibilities to a stepparent that a biological parent would have. In addition to meeting the requirements associated with any form of adoption, the stepparent must be leally married to the custodial parent to adopt their stepchild. The non-custodial biological parent of the child must consent to the adoption absent specific legal grounds…

    How Divorce Works in Indiana: Step by Step (2026 Guide)

    On Behalf of Dixon & Moseley, P.C. | Mar 24, 2026 | Uncategorized

    Executive Summary In order to divorce in Indiana, at least one spouse must meet the statutory residency requirement. There are numerous grounds recognized for divorce by Indiana courts, but the most common is irretrievable breakdown of the marriage. A spouse seeking a divorce must prepare a petition including information about any minor or dependent children they have, as well as…

    Indiana Guardianship Laws (2026): How to File, Costs, Types, and Alternatives

    On Behalf of Dixon & Moseley, P.C. | Mar 19, 2026 | Uncategorized

    Executive Summary A guardianship is a court supervised legal arrangement where a judge appoints a guardian to make decisions for someone that is incapacitated and unable to make decisions about their finances. To obtain a guardianship, a prospective guardian must file a petition for guardianship with the appropriate court, notify interested parties, and attend a hearing where a judge will…

    Indiana’s New Custody Law: What Parents Need to Know About Findings of Fact Executive Summary

    On Behalf of Dixon & Moseley, P.C. | Mar 17, 2026 | Uncategorized

    Indiana law now requires judges to explain child custody decisions in writing. As of July 1, 2025, Indiana courts must include written findings of fact and conclusions of law in final custody orders. This means judges can no longer issue unexplained custody rulings. Instead, they must clearly identify the evidence they relied upon and explain how it supports the custody…

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