By a vote of 7 to 2, the Supreme Court ruled today in Counterman v. Colorado that the First Amendment requires that, in order to prosecute someone for what is indisputably a “true threat” of violence, a state must show that the defendant had some subjective understanding of the threatening nature of his statements.
Justice Kagan’s majority opinion for five justices (the Chief, Alito, Kavanaugh, Jackson, and herself) requires that the state show recklessness—that the defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” Even though a true threat “lie[s] outside the bounds of the First Amendment’s protection,” prosecution of true threats poses “the prospect of chilling non-threatening expression, given the ordinary citizen’s predictable tendency to steer wide of the unlawful zone.” (Cleaned up.) Lest a speaker “swallow words that are in fact not true threats,” the First Amendment requires some “type of subjective standard.” And “recklessness offers the right path forward.”
To clarify: The issue before the Court was not whether the state must show that the defendant understood the meaning of his words—e.g., that someone who made a threat using words in the English language knew what those words meant. The issue was instead whether the state must further show that the defendant had some mental state (mens rea in legal jargon) regarding the threatening nature of his words—and, if so, what mental state sufficed.
Justice Sotomayor’s opinion concurring in the judgment agrees that recklessness suffices “in this particular case, where [defendant] was prosecuted for stalking that involved threatening statements.” But for true-threats prosecutions generally, she might require the state to show that the defendant intentionally threatened violence.
In dissent, Justice Barrett, joined by Justice Thomas, objects that the majority “unjustifiably grants true threats preferential treatment.” There is no basis, she argues, for the Court to “install[] a prophylactic buffer zone to avoid chilling protected speech.”
With the acknowledgment that I haven’t read the briefs in this case, I will say that Barrett’s dissent makes sense to me. I hadn’t realized that we live in a culture in which there is a risk that too many speakers will “steer wide” of threatening language, and I don’t know that I would see that as a downside in any event.