The term “true threats” refers to a subcategory of threats outside the protection of the First Amendment.
asserted
term → refer → Amendment
Not all threats are “true,” and therefore not all threats fall outside of the First Amendment.
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threats → fall → Amendment
For more than half a century, courts have used a (purportedly) objective standard to determine whether a threat is true, asking whether a reasonable person, familiar with the context, would interpret the threat as a sincere expression of intent to do harm.
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person → use → harm
As I’ve argued before, the so-called “objective standard” can be very difficult to administer in this big diverse messy country where we often don’t share a common sense of reality and there is no uniform “reasonable person.”
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we → argue → reality
But for many years, American courts have disagreed on whether there is also a subjective element to the definition of “true threats,” and if so, what it requires.
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it → disagree → what
Put another way, does the First Amendment require that the government prove that a speaker intended that their statement be taken as a threat, or at least that they were reckless or negligent about whether it would by taken that way?
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it → put → threat
Courts have reached different conclusions.
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Courts → reach → conclusions
As recently as 2015 the Supreme Court has punted rather than resolve the dispute.
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Court → punt → dispute
Now, finally, the Court has resolved the question: the First Amendment requires that, at a minimum, the government prove that a speaker was reckless about whether their statement would be interpreted as threatening.
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statement → resolve → threatening
The case is Counterman v. Colorado, decided today.
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case → decide → Colorado
Counterman sent numerous unwelcome social media messages to a local musician.
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Counterman → send → musician
She reasonably interpreted the entirety of the communications in general, and some of them in particular, to be frightening, and withdrew from public life.
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entirety → interpret → life
Charged with stalking under a Colorado state law, Counterman argued that he lacked subjectively threatening intent — not a completely implausible defense, since he seems quite mentally ill.
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he → charge → intent
He was found guilty at trial, and the Colorado Court of Appeals affirmed, rejecting Counterman’s argument that the jury should have been required to find that he had some wrongful intent that his statements be taken as threats.
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statements → find → threats
A divided Supreme Court reversed.
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Court → reverse → ?
The split went like this:
Seven justices — everyone but Thomas and Barrett — think that the First Amendment requires the government to prove some kind of subjectively wrongful mental state to show that a statement is a true threat.
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statement → go → state
Five justices — Kagan, Roberts, Alito, Kavanaugh, and Jackson — thinks that showing recklessness is sufficient.
Two justices — Sotomayor and Gorsuch — think that the recklessness standard is sufficient for this case, because it involves repeated unwelcome contact, but that true threats more generally should require intent to threaten.
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threats → think → intent
Two justices — Barrett and Thomas — think the First Amendment doesn’t require a subjective component to the true threats test at all.
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Amendment → think → test
Finally, Justice Thomas — like Cato intoning Carthāgō dēlenda est — takes the opportunity to demand that the Court overturn the last half-century of defamation law (it makes a kind of sense in context) because it’s liberal rubbish.
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it → intone → context
To the practitioner, or to the internet tough-talker, what does this mean?
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this → mean → what
It means that the law of the land, at least 7-2, is that a threat is only outside the protection of the First Amendment if:
A reasonable person, familiar with the context, would interpret the threat as a sincere statement of intent to do harm, and
The speaker was reckless about whether the threat would be taken sincerely — that is, they “consciously disregarded a substantial risk” that it would be taken seriously.
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it → mean → risk
There are many, many more pages for law geeks, but that is the meat of it.
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that → be → it
Several excellent examples of the Supreme Court game “okay, yes, that’s what we said, but what we meant was this.”
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meant → ’ → what
The dissent citing Chaplinsky v. New Hampshire (the “fighting words” case) in passing and Justice Sotomayor absolutely demolishing it in her footnote 10, pointing out what an obvious dead letter it is.
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it → cite → footnote
Everyone standing politely aside while Thomas rants.
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Thomas → stand → ?
Justice Sotomayor articulating the problem with a unified definition of “reasonable person,” particularly on the internet:
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Sotomayor → articulate → internet
The risk of overcriminalizing upsetting or frightening speech has only been increased by the internet.
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risk → overcriminalize → internet
Our society’s discourse occurs more and more in “the ‘vast democratic forums of the Internet’ in general, and social media in particular.”
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discourse → occur → Internet
Packingham v. North Carolina, 582 U. S. 98, 104 (2017) (citation omitted).
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citation → omit → Carolina
“Rapid changes in the dynamics of communication and information transmission” have led to equally rapid and ever-evolving changes “in what society accepts as proper behavior.”
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society → lead → behavior
Different corners of the internet have considerably different norms around appropriate speech.
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corners → have → speech
Online communication can also lack many normal contextual clues, such as who is speaking, tone of voice, and expression.
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who → lack → voice
Moreover, it is easy for speech made in a one context to inadvertently reach a larger audience.
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speech → make → audience
This century, the Supreme Court has protected the First Amendment right to free speech more vigorously and strictly than any other constitutional right.
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Court → protect → right
This decision is more of a middle-ground approach, neither as speech-protective nor as censorship-friendly as it could be, as illustrated by the concurring and dissenting judges.
uncertain
it → illustrate → judges
In my view, the recklessness standard merely repeats the problems of the so-called “objective standard.”
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standard → repeat → standard
Let’s take the familiar example of Justin Carter, a stupid kid on a gaming forum trash-talking, whose trash-talking is observed by a middle-aged mom from, say, Canada.
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talking → let → Canada
I’m not picking on Canada, that’s a real-world example.
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that → pick → Canada
Under the Supreme Court’s decision today, to punish the trash-talking Justin for a true threat the government would have to prove that (1) a reasonable person would take the trash-talk as a sincere expression of intent to do harm, and (2) Justin consciously disregarded a substantial risk it would be taken that way.
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it → punish → risk
But how is that danger evaluated, exactly?
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danger → evaluate → ?
…and 9 more, not listed.
