The Supreme Court has long recognized that “real threats” of unlawful conduct are excluded from First Amendment protection. But what mindset does the government have to show to prove that something is a real threat?
- Is it enough to show that a reasonable person would have recognized him as threatening (a mental state generally qualified as “negligence”)?
- Does the government have to show that the speaker recognized that they were very likely to be perceived as threatening and ignored that risk (usually called “recklessness”)?
- Does the government have to demonstrate that the speaker knew that he was almost certain to be perceived as threatening (generally referred to as “acquaintance”)?
- Does the government have to demonstrate that the speaker specifically intended to make people feel threatened (usually called “purpose”)?
Curiously, the Court never resolved this question, although these elements of “mens rea” are key elements of many other First Amendment tests:
- recklessness or knowledge, for example, is required for speech about public officials or public figures to be considered unprotected defamation;
- negligence is necessary for speech about private figures to be unprotected libel;
- purpose is required for speech advocating imminent and probable conduct to be incitement;
- And so on.
(I’m simplifying a little too much here.) In 2015, people expected the Court to look into the matter by Elonis vs USAbut the Court interpreted the federal threats law in a way that rendered useless to think about the question.
Today, the Court resolved the matter by Counterman v. Colorado (where our own John Elwood represented Counterman). Justice Kagan, joined by Chief Justice Roberts and Justices Alito, Kavanaugh and Jackson, found that a display of recklessness was necessary and sufficient:
(The) First Amendment…requires proof that the defendant had some subjective understanding of the threatening nature of his statements…(,) but that a mental state of recklessness is sufficient. The state must demonstrate that the accused consciously ignored a substantial risk that his communications would be viewed as a threat of violence. The state need not prove a more demanding form of subjective intent to threaten another.
Note that this is recklessness in the sense of knowingly ignoring a risk, not just gross negligence (which is sometimes colloquially referred to as “recklessness”), which can be present even without any awareness of the risk. The majority view is likely to apply to civil liability for threats as well as criminal liability, as well as civil threat restraining orders (which are entered into a civil suit but may carry penalties penalties if violated). Generally speaking (to simplify a bit), the First Amendment rules are much the same in criminal and civil cases speech-based.
Judge Sotomayor concurred in part and concurred in the judgment. She concluded that recklessness sufficed in cases of harassment, in the form of “a combination of threatening statements and repeated, unwanted direct contact”. (These are the charges against Counterman in this case). As for prosecutions based simply on threatening individual statements, she considered:
(I would leave) for another day the question of the specific mens rea required to prosecute genuine threats in general. If this question is asked, however, the answer is that real threats encompass a narrow band of intentional threats. Especially in a climate of intense polarization, it is dangerous to allow criminal prosecution for impassioned words based solely on a standard of amorphous recklessness.
By “intent” it seemed to mean that a demonstration of intent or knowledge should suffice to engage liability, but not a demonstration of recklessness. Judge Gorsuch concurred with the parts of Judge Sotomayor’s opinion relating to harassment, leaving the question of recklessness or something more for later, and rejecting a mere standard of negligence; it does not join with his approval to require a goal or knowledge.
Judge Barrett, joined by Judge Thomas, would have opted for what is essentially a standard of negligence (again, simplifying slightly).
The opinions also say more about other free speech doctrines, offering analogies and distinctions; I hope to publish separate blog posts on these elements in the next few days.
Disclosure: Profs. Evelyn Douek (Stanford) and Geneviève Lakier (Chicago) and I filed an amicus memoir who urged the court to treat the case as one of harassment (here at least hundreds of unwanted direct messages to the victim) rather than threats in general. Our position was therefore similar to that of Justices Sotomayor and Gorsuch on this issue, and indeed the concurring opinion cites the factum.