L-R: Supreme Court Justices Amy Coney Barrett, Elena Kagan, and Sonia Sotomayor pose for the Court’s official portrait in the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC. (Alex Wong/Getty Images)
You don’t need an insurrection to tell that in angry and polarized times, threats of harm are increasingly common, in public and over the internet. But when is a threat a real threat, or simply a joke, or hyperbole? When are threats criminally punishable? And when are they protected by the First Amendment?
It’s not an easy question. A person may say something to somebody that may appear as threatening harm but is not intended as a threat. “Kill the umpire” is a common example, but there are lots of others: “I’ll break my professor’s legs for giving me an F on the exam”; “I’d like to kill that motorist for swerving in front of me;” “Abortion providers should die.”
The Supreme Court, not for the first time, last week weighed in on threats in the case of Counterman v. Colorado. Billy Raymond Counterman, of Colorado, was convicted of “stalking” a singer-songwriter with virulent and menacing text messages, including having seen her in person and that she should die. He argued that his remarks were not “true threats” because he did not intend to harm her, and that his speech was protected by the First Amendment.
The Supreme Court in past cases has reviewed the constitutionality of threats, coming to different conclusions depending on the facts. In Watts v. United States (1969), the Court reversed the defendant’s conviction for threatening the life of then-President Lyndon B. Johnson, ruling that the defendant’s statement, “If they make me carry a rifle the first man I want to get in my sights is L.B.J.” The threat, said the Court, was “political hyperbole,” a crude and offensive way of stating his opposition to the President. The First Amendment’s protection of free speech “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Several years later, in Virginia v. Black (2003), the Court held that a statute making it a felony to burn a cross on somebody’s property did not violate the First Amendment, observing that cross-burning constitutes a “true threat” and “is a particularly virulent form of intimidation.” The Court noted, however, that not all cross-burning is forbidden; burning a cross at a Ku Klux Klan rally, for example, however despicable, is protected speech.
And in Elonis v. United States (2015), the Court reversed the defendant’s conviction for posting rap lyrics on his Facebook page containing graphically violent imagery about his ex-wife and co-workers. Many people who knew the defendant viewed his posts as threatening. At trial, the judge instructed the jury that it could find the defendant guilty if a “reasonable person” would interpret his statements as a threat. This instruction violated the First Amendment, the Supreme Court ruled. In order to convict somebody of a crime, the law must contain some culpable mens rea requirement, that is, some language requiring a person’s “awareness of wrongdoing.” But the Court did not explain what the test should be.
That issue was at the center of last week’s decision. The Court refused to apply an “objective” test which would look to how a reasonable observer would construe the statement. Punishment for threats requires a “subjective” standard; “requiring less risks the hazards of self-censorship to compensate for the law’s uncertainties.” In other words, an easier test to convict might discourage the “uninhibited, robust, and wide-open debate that the First Amendment is intended to protect.” But which subjective standard to apply? Intent to harm? Or recklessness, meaning a person’s awareness that others could regard the statements as threatening violence but making the statements anyway?
The Court opted for the recklessness test. Justice Elena Kagan, who wrote the opinion, acknowledged that it was a balance; it is not the most protective of free speech, but neither is it oblivious to the dangers of threats. It strikes the appropriate balance, she added, between avoiding suppressing non-threatening speech, on the one hand, and on the other hand allowing states to effectively protect “against the profound harms” that can flow from true threats. One can reasonably question the balance struck.
Justice Amy Coney Barrett, in her dissent, called it — with some sarcasm — a “Goldilocks” test: not too hot, not too cold, but “just right.” She added that true threats carry little social value in terms of free speech. Why make the prosecutor’s job more difficult?
Justice Sonia Sotomayor, by contrast, believed that in a climate of intense polarization, “it is dangerous to allow criminal prosecutions for heated words based solely on an amorphous recklessness standard.”
The defendant’s case was remanded for a new trial under the new test. A prediction: Guilty.
Professor Bennett Gershman is a Professor of Law at the Elisabeth Haub School of Law at Pace University, a former prosecutor in New York State’s Anti-Corruption Office, and the author of four books and the treatise “Prosecutorial Misconduct.”
This is an opinion piece. The views expressed in this article are those of just the author.
