Supreme Court Clarifies "True Threats" First Amendment Exception

The term “true threats” refers to a subcategory of threats outside the protection of the First Amendment. Not all threats are “true,” and therefore not all threats fall outside of the First 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. 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.”

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. 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? Courts have reached different conclusions. As recently as 2015 the Supreme Court has punted rather than resolve the 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.

The case is Counterman v. Colorado, decided today. Counterman sent numerous unwelcome social media messages to a local 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. 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. 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.

A divided Supreme Court reversed. 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.

• 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.

• Two justices — Barrett and Thomas — think the First Amendment doesn’t require a subjective component to the true threats test at all.

• 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.

So. To the practitioner, or to the internet tough-talker, what does this mean? 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.

There are many, many more pages for law geeks, but that is the meat of it. Some high points to watch for:

• Several excellent examples of the Supreme Court game “okay, yes, that’s what we said, but what we meant was this.”

• 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.

• Everyone standing politely aside while Thomas rants.

• Justice Sotomayor articulating the problem with a unified definition of “reasonable person,” particularly on the internet:

This century, the Supreme Court has protected the First Amendment right to free speech more vigorously and strictly than any other constitutional 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.

In my view, the recklessness standard merely repeats the problems of the so-called “objective 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. I’m not picking on Canada, that’s a real-world example. 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.

But how is that danger evaluated, exactly? Is Justin required to assume that people outside the League of Legends forums (a dump site of arrested adolescence and jibbering mother-shamers) are going to read his post, and therefore assess how his post will be taken by Canadian mothers? Or is he only required to consider his intended or likely audience? Is it enough that Justin can introduce evidence about his expectations of how the unbathed denizens of his forum would understand him, perhaps through expert testimony? Is it enough to argue to the jury that idiot manchildren rarely comprehend their words may land differently on different ears? I know how “reckless disregard” would work in a monoculture, but what about in a swarm of violently disputing subcultures?

I don’t think Counterman will lead to a surge of threat prosecutions. Proving recklessness already carries many of the challenges of proving intent to threaten. Many jurisdictions already assumed that recklessness or negligence was enough. This isn’t a sea change, it’s what passes for a clarification — but one that illuminates how messy our fundamental legal standards are in practice.