Supreme Court clarifies when threatening speech is not protected by the First Amendment

Lost in the shuffle of other high-profile Supreme Court rulings this term is a recent decision that clarifies when the threats of violence are not protected speech under the First Amendment. The case arises from a guy who was stalking a female musician online.

The case is Counterman v. Colorado, issued on June 27. Counterman was sending this woman hundreds of Facebook messages that made her fear for her life. He was prosecuted and convicted under a Colorado law that makes it illegal to repeatedly communicate with another person in a manner that would cause a reasonable person to suffer serious emotional distress. Countryman says he cannot be guilty of this because he did not intend to cause such emotional distress. 

The Supreme Court notes that we have very few exceptions rule that the government cannot restrict speech entirety. Those exceptions include defamation, child pornography, fighting words, obscenity, incitement to riot, and true threats. This case involves the true threat doctrine. That doctrine has been on the books for decades but this case if the first time the Court discusses what mental element (mens rea in legalese) prosecutors must show to win a conviction for a true threat.

Justice Kagan writes that the words alone are not enough to be a true threat. You have to show the defendant had the requisite mental state to cause someone to fear for their life. After reviewing other First Amendment precedents on defamation, incitement to riot, and obscenity, the majority settles upon a recklessness standard, rejecting the malicious intent and negligence standards. This middle ground makes it less likely that someone will chill their speech for fear of prosecution. The Court recognizes that the recklessness test might allow some bad speech to slip through the cracks, but there is no perfect answer to this issue. In response to the dissent's complaint that the majority is making a "Goldilocks judgment," Justice Kagan writes, "in law, as in life, there are worse things than being 'just right.'"

This ruling means that Counterman's case returns to the courts in Colorado for the courts to apply the new test outlined in this case.

Justices Sotomayor and Gorsuch write separately to state that the recklessness test is OK for some true threat cases, such as this Internet stalking case, but that the Court should leave open the possibility that a different mens rea standard might apply in other true threat cases. Justices Barrett and Thomas dissent. Thomas in particular argues that all this judge-made, policy-driven law is not authorized by the Constitution, and he bemoans how the majority relies on New York Times v. Sullivan, the classic defamation case involving public officials, to help guide its reasoning. In Sullivan, the Court in 1964 said that public figures have to show malice to win a defamation case. Thomas suggests once again that the Court should reconsider Sullivan.