Amicus Curiae Brief — Jamal Knox, Petitioner v. Pennsylvania

No. 18-949

IN THE

Supreme Court of the United States

JAMAL KNOX,

Petitioner,

v.

PENNSYLVANIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF

FOR THE CATO INSTITUTE AND THE

RUTHERFORD INSTITUTE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

ILYA SHAPIRO

TREVOR BURRUS

MICHAEL FINCH

CATO INSTITUTE

1000 Massachusetts Avenue NW

Washington, DC 20001

JOHN W. WHITEHEAD

DOUGLAS R. MCKUSICK

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

ARI SAVITZKY

Counsel of Record

PAUL VANDERSLICE

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Avenue NW

Washington, DC 20006

(202) 663-6000

ari.savitzky@wilmerhale.com

MARK C. FLEMING

JAMES BOR-ZALE

RAUVIN JOHL

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

MOTION FOR LEAVE TO FILE BRIEF AS AMICI

CURIAE IN SUPPORT OF PETITIONER

Amici curiae Cato Institute and the Rutherford

Institute respectfully move for leave to file a brief explaining why this Court should grant certiorari to review the judgment of the Supreme Court of Pennsylvania. Amici timely notified counsel of record for both

parties more than 10 days prior to filing that they intended to submit the attached brief. Petitioner Jamal

Knox has consented to the filing of the brief. Counsel

for respondent took “no position,” and clarified that respondent “does not expressly consent to the filing of an

amicus brief,” but is “not expressly objecting to the filing of one either.” Out of an abundance of caution, amici submit this motion for leave to file pursuant to this

Court’s Rule 37.2(b).

The Supreme Court of Pennsylvania upheld petitioner’s conviction for making “terroristic threats”

based on rap lyrics posted on YouTube. See Pet. App.

2a-8a. It held that petitioner’s speech was an unprotected “true threat” based on a finding of subjective intent to threaten, but it never considered whether the

online rap lyrics, in context, were objectively threatening. Id. 19a-28a. State high courts and federal courts of

appeals are now deeply divided over application of the

“true threats” exception, which allows government to

criminally prosecute a person for his or her speech. See

Pet. 8-14. And this Court’s opinions regarding the

“true threats” exception are few and far between.

Amici are nonprofit organizations devoted to the

defense of constitutional liberties, including the First

Amendment. Amici have a longstanding and shared

interest in preserving the widest possible space for free

speech and expression, consistent with First Amend-

ment principles, and in identifying those cases that

provide the best vehicles for the Court to provide guidance to lower courts on the application of those principles. This Court has relied on amici’s arguments in

several First Amendment cases. See, e.g., Packingham

v. North Carolina, 137 S. Ct. 1730, 1736-1737 (2017)

(citing Cato Institute brief); Brown v. Entertainment

Merchants Ass’n, 564 U.S. 786, 797 (2011) (citing Cato

Institute brief); Snyder v. Phelps, 562 U.S. 443, 448

(2011) (citing Rutherford Institute brief).

Amici respectfully submit that their brief should

be accepted in connection with this Court’s consideration of the petition for certiorari. This case presents an

issue of considerable practical and constitutional importance—whether and when individuals may be criminally prosecuted and incarcerated based on the content

of their speech. The Court should resolve the ambiguity in the law regarding the “true threats” exception

and take this opportunity to ensure that, consistent

with long-held First Amendment principles, the exception remains an exceedingly narrow one.

For the foregoing reasons, the motion to file the

brief of amici curiae should be granted.

Respectfully submitted,

ILYA SHAPIRO

TREVOR BURRUS

MICHAEL FINCH

CATO INSTITUTE

1000 Massachusetts Avenue NW

Washington, DC 20001

JOHN W. WHITEHEAD

DOUGLAS R. MCKUSICK

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

ARI SAVITZKY

Counsel of Record

PAUL VANDERSLICE

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Avenue NW

Washington, DC 20006

(202) 663-6000

ari.savitzky@wilmerhale.com

MARK C. FLEMING

JAMES BOR-ZALE

RAUVIN JOHL

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..........................................iii

INTEREST OF AMICI CURIAE .................................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT................................................................ 2

ARGUMENT ....................................................................... 4

I.

THE COURT SHOULD ADDRESS PERVASIVE

CONFUSION OVER THE “TRUE THREATS”

EXCEPTION TO THE FIRST AMENDMENT .................. 4

A. The Law Governing The “True

Threats” Exception Is In Disarray,

Threatening Liberty ............................................. 4

B. This Is The Right Vehicle For

Clarifying

The

“True

Threats”

Exception ............................................................... 9

II. THE COURT SHOULD EMPHASIZE THAT

THE “TRUE THREATS” EXCEPTION IS

NARROW....................................................................... 11

A. The “True Threats” Exception Is

Narrow.................................................................. 11

B. Requiring

Both

Objective

And

Subjective Analyses Will Keep The

“True Threats” Exception Narrow And

Safeguard Liberty............................................... 12

III. THE COURT’S GUIDANCE IS REQUIRED TO

PREVENT THE CHILLING OF PROTECTED

SPEECH ........................................................................ 15

ii

TABLE OF CONTENTS—Continued

Page

A. This Case Implicates Longstanding

Concerns Over The Chilling Of

Protected Political And Artistic

Speech ................................................................... 15

B. Objective Analysis Is A Critical Safety

Valve For Protecting Free Expression ........... 18

CONCLUSION ................................................................. 22

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Abrams v. United States, 250 U.S. 616 (1919) .............. 14

Arizona Free Enterprise Club’s Freedom Club

PAC v. Bennett, 564 U.S. 721 (2011) ................. 14, 19

Ashcroft v. ACLU, 535 U.S. 564 (2002) ............................ 4

Ashcroft v. ACLU, 542 U.S. 656 (2004) ............................ 2

Ashcroft v. Free Speech Coalition, 535 U.S. 234

(2002) ............................................................................ 13

Brandenburg v. Ohio, 395 U.S. 444 (1969) ..................... 12

Chaplinsky v. New Hampshire, 315 U.S. 568

(1942) .......................................................................... 7, 8

Cohen v. California, 403 U.S. 15 (1971) ........................... 8

Elonis v. United States, 135 S. Ct. 2001

(2015) ........................................................ 6, 9, 10, 13, 17

FEC v. Wisconsin Right To Life, Inc., 551 U.S.

449 (2007) ................................................... 11, 14, 18, 20

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ............. 8

Gooding v. Wilson, 405 U.S. 518 (1972) .......................... 18

Hamling v. United States, 418 U.S. 87 (1974) ................. 7

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46

(1988) .............................................................................. 8

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557

(1995) ............................................................................ 16

Illinois ex rel. Madigan v. Telemarketing

Associates, Inc., 538 U.S. 600 (2003) ....................... 21

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Jacobellis v. Ohio, 378 U.S. 184 (1964) ............................. 8

Melugin v. Hames, 38 F.3d 1478 (9th Cir. 1994)........... 19

Miller v. California, 413 U.S. 15 (1973) ................. 7, 8, 16

Minnesota Voters Alliance v. Mansky, 138 S.

Ct. 1876 (2018) ............................................................... 7

New York Times Co. v. Sullivan, 376 U.S. 254

(1964) ........................................................................ 5, 15

New York v. Ferber, 458 U.S. 747 (1982) ................. 15, 18

Packingham v. North Carolina, 137 S. Ct. 1730

(2017) .................................................................. 9, 10, 17

Perez v. Florida, 137 S. Ct. 853 (2017) ............................. 9

R.A.V. v. City of St. Paul, 505 U.S. 377

(1992) ............................................................ 2, 4, 7, 8, 22

Reno v. ACLU, 521 U.S. 844 (1997) ............................ 8, 17

Riley v. National Federation of the Blind of

North Carolina, Inc., 487 U.S. 781 (1988) .......... 7, 15

Rosenbloom v. Metromedia, Inc., 403 U.S. 29

(1971) .............................................................................. 8

Snyder v. Phelps, 562 U.S. 443 (2011) ...................... 12, 21

Texas v. Johnson, 491 U.S. 397 (1989)...................... 12, 19

United States v. Alvarez, 567 U.S. 709

(2012) .................................................................. 5, 11, 13

United States v. Cassel, 408 F.3d 622 (9th Cir.

2005) ............................................................................... 7

United States v. Clemens, 738 F.3d 1 (1st Cir.

2013) ............................................................................... 7

v

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Elonis, 730 F.3d 321 (3d Cir.

2013) ............................................................................. 18

United States v. Heineman, 767 F.3d 970 (10th

Cir. 2014) .................................................................... 7, 9

United States v. Jeffries, 692 F.3d 473 (6th Cir.

2012) ......................................................... 6, 9, 13, 14, 22

United States v. Parr, 545 F.3d 491 (7th Cir.

2008) ............................................................................... 6

United States v. Stevens, 559 U.S. 460 (2010) ..... 4, 5, 11, 12

Virginia v. Black, 538 U.S. 343 (2003) ... 5, 12, 13, 14, 15, 21

West Virginia State Board of Education v.

Barnette, 319 U.S. 624 (1943) .................................... 19

Watts v. United States, 394 U.S. 705

(1969) ...................................................... 5, 12, 13, 16, 17

DOCKETED CASES

Elonis v. United States, No. 13-983 (U.S.) .................... 20

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. I ........................................................... 4

18 U.S.C. § 875 ..................................................................... 6

OTHER AUTHORITIES

Harawa, Daniel S., Social Media Thoughtcrimes,

35 Pace L. Rev. 366 (2014) ........................................ 10

https://www.alexa.com/topsites/countries/US

(visited Mar. 6, 2019) .................................................. 10

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Kerr, Andrew J., Aesthetic Play and Bad

Intent, 103 Minn. L. Rev. Headnotes 101

(2018) ............................................................................ 20

Meiklejohn, Alexander, The First Amendment

Is an Absolute, 1961 Sup. Ct. Rev. 245

(1961) ............................................................................ 16

Romero, Dennis, Banks-on-Fire Paintings by

Artist Alex Schaefer Inspire LAPD

Concern: Now Collectors Willing to Pay

Thousands, LA Weekly (Sept. 7, 2011)................... 20

INTEREST OF AMICI CURIAE 1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free markets, and limited government. Cato’s Robert A. Levy

Center for Constitutional Studies helps restore the

principles of constitutional government that are the

foundation of liberty. To those ends, Cato holds conferences; publishes books, studies, and the annual Cato

Supreme Court Review; and files amicus briefs.

The Rutherford Institute is an international nonprofit organization headquartered in Charlottesville,

Virginia. Founded in 1982 by its president, John W.

Whitehead, Rutherford specializes in providing legal

representation without charge to individuals whose civil liberties are threatened or infringed and in educating

the public about constitutional and human rights issues.

Amici are interested in this case because it touches

on core questions of individual liberty that the First

Amendment was created to protect and preserve. Because the Bill of Rights serves as a safeguard against

government excess, amici respectfully submit that the

Court should grant the petition and reverse the judgment of the Supreme Court of Pennsylvania.

1

Counsel of record for both parties received timely notice of

amici’s intention to file this brief. Petitioner’s counsel consented,

while Respondent’s counsel took “no position” and clarified that

respondent “does not expressly consent to the filing of an amicus

brief,” but is “not expressly objecting to the filing of one either.”

Amici have thus moved for leave to file this brief. No person other than amici and their counsel authored any part of this brief or

made any monetary contribution to fund its preparation or submission.

2

INTRODUCTION AND SUMMARY OF ARGUMENT

“Content-based prohibitions, enforced by severe

criminal penalties, have the constant potential to be a

repressive force in the lives and thoughts of a free people.” Ashcroft v. ACLU, 542 U.S. 656, 660 (2004). The

Constitution’s protection of free speech is accordingly

at its highest when government attempts to prosecute

someone for his or her words. Although this Court has

recognized exceptions to that bedrock rule, it has equally recognized that such exceptions must be clearly delineated and narrowly circumscribed to avoid chilling

protected speech. E.g., R.A.V. v. City of St. Paul, 505

U.S. 377, 399 (1992). Nonetheless, the state of the law

with respect to the exception at issue—which allows

the state to impose criminal liability for “true

threats”—is hopelessly muddled.

The decision below is a regrettable consequence of

that confusion. Petitioner was tried and convicted for a

musical performance, uploaded to social media, that expressed anger at local police. Lower courts are divided

on whether such behavior can be criminalized without

evidence that an objective listener would consider the

speech to be an actual threat. This lack of clarity urgently requires this Court’s attention.

Amici write to offer three basic points.

First, divisions among the lower courts over the

“true threats” doctrine are particularly dangerous to

liberty and cry out for this Court’s review. Courts have

adopted divergent standards for determining when

speech is an unprotected “true threat.” And this Court

has issued only two opinions on the issue, the last one

over 15 years ago (and a fractured one at that). The

very existence of ambiguity over whether and when

the government may criminally prosecute people for

3

the content of their speech is a serious threat to liberty.

The situation is more alarming given that the Nation is

undergoing a communications revolution, driven by unprecedented new forms of online expression—and unprecedented new attempts by government to monitor

and restrict such expression. This case is the right vehicle to set clear, badly-needed boundaries for government authority to limit online expression through the

harsh cudgel of criminal prosecution.

Second, in clarifying the law, this Court should emphasize that the “true threats” exception, just like obscenity, defamation, and other exceptional categories of

unprotected speech, is an exceedingly narrow carveout

from the constitutional norm. The First Amendment

favors more speech, not less, and the government bears

a heavy burden when it seeks to proscribe categories of

speech. To keep the “true threats” exception narrow,

the Court should confirm what its decisions already

suggest: For the exception to apply, the targeted

speech must be both objectively threatening and subjectively intended as a threat.

Third, the Court’s guidance is necessary to avoid

chilling protected expression. This Court’s longstanding concern with government action that might chill

protected artistic or political expression is fully implicated here, where the petitioner was prosecuted for a

musical performance that was posted online. And the

particular error here further exacerbates that risk: By

adopting a subjective-intent-only test, the Supreme

Court of Pennsylvania embraced a rule that fails to protect defendants who are prosecuted for their speech,

insulates “true threats” convictions from appellate review, and leaves some controversial speakers unprotected even with respect to political or artistic expression.

4

Accordingly, the Court should grant the petition

for certiorari and revisit its “true threats” jurisprudence.

ARGUMENT

I.

THE COURT SHOULD ADDRESS PERVASIVE CONFUSION OVER THE “TRUE THREATS” EXCEPTION TO

THE FIRST AMENDMENT

“Congress shall make no law … abridging the freedom of speech.” U.S. Const. amend. I. At its fundamental level, the First Amendment prohibits the state

from imprisoning people for the content of their speech.

Yet courts are deeply divided over the scope of the judicially-recognized exception permitting prosecution

for “true threats.” Such confusion would be intolerable

in any circumstance, but it is especially intolerable at

this moment, as governments seeks to control and

regulate new forms of online expression. Fresh guidance from this Court on the “true threats” exception is

urgently required—and this case presents the perfect

vehicle for providing it.

A. The Law Governing The “True Threats” Exception Is In Disarray, Threatening Liberty

“‘[A]s a general matter, the First Amendment

means that government has no power to restrict expression because of its message, its ideas, its subject matter,

or its content.’” United States v. Stevens, 559 U.S. 460,

468 (2010) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573

(2002)) (brackets in original). This Court has identified a

few very narrow exceptions—“certain well-defined and

narrowly limited classes of speech,” such as obscenity

and defamation—that may be punished without offending the First Amendment. E.g., R.A.V. v. City of St.

Paul, 505 U.S. 377, 399 (1992) (internal quotation marks

5

omitted); accord United States v. Alvarez, 567 U.S. 709,

716-717 (2012) (listing the “few ‘historic and traditional

categories’” of expression that may be subject to content-based regulations (quoting Stevens, 559 U.S. at

468)).

In Watts v. United States, the Court postulated

that one of those narrowly limited classes of speech

might be so-called “true threats.” 394 U.S. 705, 708

(1969) (per curiam). But the Court did not find the

speech at issue in Watts—a statement made at a Vietnam War protest that the petitioner, if drafted, would

aim his rifle at President Johnson—was a true threat.

Id. at 706. Rather, it concluded that the petitioner’s

commentary, even if “a kind of very crude offensive

method of stating a political opposition to the President,” could not reasonably be interpreted as a threat.

Id. at 707-708. A “‘vehement, caustic, and … unpleasantly sharp attack[] on government,’” the Court held, is

still not a true threat. Id. at 708 (quoting New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Accordingly, the Court reversed the petitioner’s conviction. Id.

Decades passed before this Court revisited the

“true threats” exception in Virginia v. Black, 538 U.S.

343 (2003). In a fractured decision, the Court held unconstitutional a Virginia statute treating the public

burning of a cross as “‘prima facie evidence of an intent

to intimidate.’” Id. at 348 (internal quotation marks

omitted). The Court explained that cross-burning

could fall within the category of “true threats” unprotected by the First Amendment, id. at 360, but, as Justice O’Connor’s plurality opinion explained, the statute

went too far by presuming that cross-burning is “always intended to intimidate,” id. at 365.

6

Most recently, the Court had the opportunity to

clarify some aspects of the “true threats” exception in

Elonis v. United States, 135 S. Ct. 2001 (2015), which

considered whether the petitioner’s Facebook posts,

including posts involving imagined violence against his

ex-wife, violated the federal threats statute, 18 U.S.C.

§ 875(c). 135 S. Ct. at 2004. But the Court resolved

that case entirely on statutory grounds, id. at 2010,

providing no further guidance as to what constitutes a

constitutionally-unprotected “true threat.”2

Together, Watts and Black indicate that (at a minimum) a “true threat” must be both objectively threating to a reasonable listener and subjectively intended

as such by the speaker. See infra Part II; see also

United States v. Jeffries, 692 F.3d 473, 485 (6th Cir.

2012) (Sutton, J., dubitante) (suggesting that interpretation with respect to the federal threat statute); United States v. Parr, 545 F.3d 491, 500 (7th Cir. 2008)

(suggesting speech ‘‘must objectively be a threat and

subjectively be intended as such’’ but that, post-Black,

the rule is “unclear”). Yet with virtually no guidance

from this Court on the nature of the “true threats” exception for over a decade, state high courts and federal

courts of appeals have become deeply divided on even

the most basic questions regarding the exception’s

scope. Most courts apply some objective reasonable

listener standard. See, e.g., Jeffries, 692 F.3d at 478

2

The Court in Elonis held only that § 875(c) requires a mens

rea greater than negligence, declining to consider whether recklessness is sufficient. 135 S. Ct. at 2012-2013. In that way, too, the

Court refrained from clarifying the laws criminalizing threatening

speech. See id. at 2014 (Alito, J., concurring in part and dissenting

in part) (failure to articulate clear mens rea standard “will have

regrettable consequences”); id. at 2028 (Thomas, J., dissenting)

(criticizing failure “to announce a clear rule”).

7

(majority opinion). A minority (including the Supreme

Court of Pennsylvania here) employs a purely subjective test. E.g., United States v. Heineman, 767 F.3d

970, 978 (10th Cir. 2014). Further divisions exist on either side of the objective/subjective divide.3

There is thus significant confusion over when government may prosecute individuals for their speech.

Such ambiguity in the criminal law is dangerous to liberty, as it requires ordinary citizens to decipher “riddles that even … top lawyers struggle to solve.” Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876, 1891

(2018). Indeed, such ambiguity contravenes the definitional requirement that, for a category of speech to fall

outside of the First Amendment’s broad ambit, it must

be “‘well-defined’” and “‘narrowly limited.’” R.A.V.,

505 U.S. at 399 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942)); see also Riley v.

National Fed’n of the Blind of N.C., Inc., 487 U.S. 781,

800 (1988) (“government [must] not dictate the content

of speech absent compelling necessity, and then, only

by means precisely tailored”).

The “true threats” exception stands in contrast to

other categories of unprotected speech that have benefited from this Court’s sustained attention. The Court

worked hard to define the limits of the obscenity exception, recognizing the “strain” placed “on both state and

federal courts” by confusion in the law. Miller v. California, 413 U.S. 15, 20-23, 24, 29 (1973); see also Hamling v. United States, 418 U.S. 87, 123 (1974) (setting

3

Compare United States v. Clemens, 738 F.3d 1, 11 (1st Cir.

2013) (some courts apply a subjective intent standard only to

communication of the threat, but not the threat itself), with United

States v. Cassel, 408 F.3d 622, 632-633 (9th Cir. 2005) (requiring

“that the speaker subjectively intended the speech as a threat”).

8

forth scienter requirement for obscenity exception). As

new questions about the obscenity exception arose in

the context of early online speech, the Court took those

up, too. E.g., Reno v. ACLU, 521 U.S. 844, 868-869

(1997) (full First Amendment protection accorded to

“the vast democratic forums of the Internet”).

Similarly, this Court’s cases evince a long “struggle[]

… to define the proper accommodation between the law

of defamation and the … First Amendment,” Gertz v.

Robert Welch, Inc., 418 U.S. 323, 325 (1974). After the

“actual malice” standard announced in New York Times

Co. v. Sullivan divided the Court, see Rosenbloom v.

Metromedia, Inc., 403 U.S. 29 (1971), the Court revisited

the issue just three years later, Gertz, 418 U.S. at 333339, 347. And because confusion over the scope of the

defamation exception persisted, the Court repeatedly

returned to the issue. See, e.g., Hustler Magazine, Inc.

v. Falwell, 485 U.S. 46, 50 (1988) (parody protected and

not subject to defamation exception).4

Confusion over the “true threats” exception presents the same significant dangers to liberty as confusion over those other exceptions to the First Amendment—and the same imperative to remedy such confusion and reaffirm First Amendment rights. Defining

the scope of First Amendment exceptions with precision “may not be an easy road,” but it is part of the

Court’s “‘duty to uphold … constitutional guarantees.’”

Miller, 413 U.S. at 29 (quoting Jacobellis v. Ohio, 378

U.S. 184, 187-188 (1964) (opinion of Brennan, J.)).

4

Likewise, with respect to the amorphous “fighting words”

exception, see Chaplinsky, 315 U.S. at 572, the Court limited that

exception’s scope, see, e.g., Cohen v. California, 403 U.S. 15, 19-20

(1971), and ultimately reduced it to near non-existence, e.g.,

R.A.V., 505 U.S. at 383-384.

9

B. This Is The Right Vehicle For Clarifying The

“True Threats” Exception

This case is an excellent vehicle for the Court to

consider the scope of the “true threats” exception and

to provide badly needed guidance for the lower courts

regarding when government may prosecute people

based on the substance of their expression.

First, this case squarely raises the central question

dividing state and federal circuit courts, namely the nature of the “true threats” test and its objective and subjective components. See Pet. 1, 8-14. One aspect of that

question is the level of mens rea required to render allegedly threatening speech unprotected, which this

Court has flagged as worthy of consideration but not yet

addressed by applying First Amendment principles, see

Elonis, 135 S. Ct. at 2004; see also Perez v. Florida, 137

S. Ct. 853, 855 (2017) (Sotomayor, J., concurring) (urging

the Court to decide the constitutional “question [it]

avoided … in Elonis”). Another aspect is whether the

speech at issue must be objectively threatening, subjectively intended as such, or both. Compare, e.g., Jeffries,

692 F.3d at 478, with, e.g., Heineman, 767 F.3d at 978,

and Jeffries, 692 F.3d at 485 (Sutton, J., dubitante). The

Supreme Court of Pennsylvania’s decision implicates

both issues. Granting certiorari would allow the Court

to resolve fundamental, unsettled, and urgent questions

about the “true threats” exception.

Second, this case is an especially good vehicle because it arises in the context of online speech. As the

Court recently recognized, “the ‘vast democratic forums of the Internet’” are now “the most important

places … for the exchange of views.” Packingham v.

North Carolina, 137 S. Ct. 1730, 1735 (2017). And social

media sites like Facebook and YouTube are the most

10

important and broadly used channels of online communication and expression today, used to “debate religion

and politics,” “look for work,” and “petition … elected

representatives.” Id. at 1735-1736; Elonis, 135 S. Ct. at

2004-2005 (discussing use of Facebook); see also Harawa, Social Media Thoughtcrimes, 35 Pace L. Rev. 366,

366 (2014) (“Social media is a necessary part of modern

interaction.”).5

The Internet provides a medium for communication, expression, and commentary to flourish at a historically unprecedented scale; anyone with a computer

or smartphone can be a publisher or a performer. But

as the Internet changes the fabric of American life,

government has tried and will keep trying to monitor,

restrict, and prosecute expression on the Internet in

myriad new ways. See, e.g., Packingham, 137 S. Ct. at

1737 (state law forbidding certain people from speaking

through social media). And the Internet provides those

who would police speech with a target-rich environment; indeed, in Packingham, in Elonis, and in this

case, law enforcement officials actively surveilled social

media for speech to target. Id. at 1734; Elonis, 135 S.

Ct. at 2006; Pet. App. 6a.

As the Internet enhances our ability to communicate and express our views, it also enhances the government’s ability to police our communication and expression. Affirming that the First Amendment’s protections apply fully to online expression is an independent reason to take up this case.

5

This case involves rap lyrics posted on YouTube, the secondmost trafficked website in America. See https://www.alexa.com/

topsites/countries/US (visited Mar. 6, 2019).

11

II. THE COURT SHOULD EMPHASIZE THAT THE “TRUE

THREATS” EXCEPTION IS NARROW

The Court should grant the petition to answer urgent questions regarding the “true threats” exception

in a manner that expands, rather than contracts, individual liberty. The “true threats” exception must remain an exceedingly narrow carveout to the broad protections of the First Amendment. Requiring courts to

consider targeted speech both objectively and subjectively is one important way to ensure that result. By

contrast, the test employed by the Supreme Court of

Pennsylvania works an unwarranted and dangerous

expansion of the “true threats” exception.

A. The “True Threats” Exception Is Narrow

The constitutional right to free speech is an essential

aspect of American liberty. Accordingly, content-based

restrictions on speech are “presumed invalid,” and the

burden is always on the government to show that a

speech regulation falls within the confined set of categories that may be subject to content-based prosecution.

E.g., Alvarez, 567 U.S. at 716-717 (internal quotation

marks omitted). Close questions, moreover, must be resolved in favor of more expression, not less; this Court

“give[s] the benefit of the doubt to speech, not censorship.” FEC v. Wisconsin Right To Life, Inc., 551 U.S.

449, 482 (2007) (“WRTL”); see also, e.g., Stevens, 559 U.S.

at 470 (“The First Amendment itself reflects a judgment

by the American people that the benefits of its restrictions on the Government outweigh the costs.”).

Under those principles, this Court has struck down

content-based speech restrictions in numerous contexts,

even in cases involving repulsive, distasteful, or terrifying speech. See, e.g., Alvarez, 567 U.S. at 729-730 (false

statements about receiving military honors); Snyder v.

12

Phelps, 562 U.S. 443, 460 (2011) (picketing of military funerals, which was “certainly hurtful”); Stevens, 559 U.S.

at 465-466 (depictions of animal cruelty, including “crush

videos” that showed “women slowly crushing animals to

death”); Texas v. Johnson, 491 U.S. 397, 419-421 (1989)

(flag desecration, despite the “flag’s deservedly cherished place in our community”); Brandenburg v. Ohio,

395 U.S. 444, 447 (1969) (Ku Klux Klan rally).

The Court has been similarly skeptical of efforts to

prosecute supposedly threatening speech. In Watts, the

Court reversed the petitioner’s conviction, holding that

the government may theoretically prohibit “true

threats,” but only after a thorough consideration of context, set against the presumption that crude, offensive,

abusive, inexact, or unpleasant rhetoric is still protected.

394 U.S. at 707-708. The Court reaffirmed the narrowness of the “true threats” exception in Black, noting that

even speech that is overwhelmingly viewed as discomfiting or offensive may be protected. 538 U.S. at 358-359;

see also id. at 367 (plurality opinion) (“The First

Amendment does not permit … shortcut[s]” in determining whether speech is a true threat). Even in the case of

cross burning, the Court explained, to fall within the

“true threats” exception, the speaker also needed to act

with the intent to intimidate. See id. at 359-360 (majority opinion); id. at 366-367 (plurality opinion). Both Watts

and Black demand a searching, detailed inquiry before

declaring that speech is unprotected by the First

Amendment and subject to criminal sanction.

B. Requiring Both Objective And Subjective

Analyses Will Keep The “True Threats” Exception Narrow And Safeguard Liberty

Together, Watts and Black provide a strong foundation for holding that (at a minimum) a true threat must

13

be both objectively threatening to a reasonable listener

and subjectively intended as such by the speaker. Accord Jeffries, 692 F.3d at 485 (Sutton, J., dubitante). The

Court in Watts looked to objective factors—the context

in which the statement was made, its conditional nature,

and the reaction of the audience—to hold that the speech

at issue was not a threat. 394 U.S. at 708; see also Elonis, 135 S. Ct. at 2027 (Thomas, J., dissenting) (“Watts

continued the long tradition of focusing on objective criteria[.]”). And the Court in Black repeatedly stressed

that a true threat requires threatening intent on the part

of the speaker. 538 U.S. at 359 (majority opinion) (true

threats “encompass those statements where the speaker

means to communicate a serious expression of an intent

to commit” violence (emphasis added)).

Embracing that reasoning would help ensure that

the “true threats” exception remains narrow. Neither

Watts nor Black considered objective or subjective analysis to the exclusion of the other. And requiring both

analyses—considering both the subjective intent of the

defendant and also the objective seriousness of the purported “threat”—would set an appropriately high bar for

the prosecution and imprisonment of people solely for

the content of their speech. See Alvarez, 567 U.S. at 726

(noting government’s “heavy burden” in seeking to regulate protected speech). There are numerous “legal

standard[s] that contain[] objective and subjective components” across the law, from the Eighth Amendment to

the immigration law’s “well-founded fear” requirement.

Jeffries, 692 F.3d at 485-486 (Sutton, J., dubitante) (collecting examples). Requiring both objective and subjective components is especially appropriate before someone is locked up for speaking. E.g., Ashcroft v. Free

Speech Coal., 535 U.S. 234, 244 (2002) (“A law imposing

14

criminal penalties on protected speech is a stark example

of speech suppression.”).

By contrast, the decision of the Supreme Court of

Pennsylvania will, if allowed to stand, lower the bar

that the government must meet before criminalizing

free expression. It allows for a criminal conviction

based entirely on the speaker’s supposed subjective intent, even if the speech at issue is, in context, objectively non-threatening. The court below did not consider

whether the song at issue was objectively threatening

and declared (mistakenly) that the objective standard is

no longer viable after Black. Pet. App. 19a. That view

incorrectly expanded the “true threats” exception, relieving courts of the need to “examine the circumstances in which a statement is made,” Jeffries, 692 F.3d at

480, and creating the grave risk that “nonthreatening

ideological expression” will be drawn “within the ambit

of the prohibition of intimidating expression,” Black,

538 U.S. at 386 (Souter, J., concurring in part in the

judgment and dissenting in part).

Lowering the bar in this manner would vitiate the

law’s longstanding preference for more speech, not less.

See, e.g., Arizona Free Enter. Club’s Freedom Club

PAC v. Bennett, 564 U.S. 721, 750 (2011) (“The First

Amendment embodies our choice as a Nation that,

when it comes to such speech, the guiding principle is

freedom—the ‘unfettered interchange of ideas’”);

Abrams v. United States, 250 U.S. 616, 630 (1919)

(Holmes, J., dissenting) (“[T]he ultimate good desired is

better reached by free trade in ideas[.]”); accord

WRTL, 551 U.S. at 482. Lowering the bar for invoking

the “true threats” exception would endanger free expression at a time of heightened uncertainty regarding

online speech in particular, and it would contravene the

reasoning of Watts and Black as well as fundamental

15

First Amendment principles. The Court should take up

this case to ensure that the “true threats” exception to

the First Amendment remains narrow.

III. THE COURT’S GUIDANCE IS REQUIRED TO PREVENT

THE CHILLING OF PROTECTED SPEECH

The presence or absence of First Amendment protection has real world effects. Ill-defined categories of

criminally-proscribable speech are likely to chill otherwise protected expression, as speakers who cannot discern any limiting principle attempt to steer clear of the

criminal law. The rule of the Supreme Court of Pennsylvania threatens to chill artistic and political expression online in particular. And the particular error

here—the adoption of a subjective-analysis-only test—

exacerbates those chilling effects.

A. This Case Implicates Longstanding Concerns

Over The Chilling Of Protected Political And

Artistic Speech

Government action that chills free expression is in

“direct contravention of the First Amendment’s dictates.” Riley, 487 U.S. at 794; see also New York Times,

376 U.S. at 279 (a rule that “dampens the vigor and limits the variety of public debate … is inconsistent with the

First and Fourteenth Amendments.”). This is especially

true when the regulation at issue chills speech and expression through “‘fear of criminal sanctions.’” E.g., New

York v. Ferber, 458 U.S. 747, 768-769 (1982); see also

Black, 538 U.S. at 365 (plurality opinion) (challenged

statute “chills constitutionally protected political speech

because of the possibility that the Commonwealth will

prosecute—and potentially convict—somebody engaging

only in lawful political speech”). Concerns about chilling

effects are at their zenith when there is a possibility that

16

government action will stifle artistic or political expression. See, e.g., Miller, 413 U.S. at 22-23 (“[T]he courts

must always remain sensitive to any infringement on

genuinely serious literary, artistic, political, or scientific

expression.”); cf. Meiklejohn, The First Amendment Is

an Absolute, 1961 Sup. Ct. Rev. 245, 257 (“Public discussions of public issues … must have a freedom unabridged

by our agents.… Literature and the arts must be protected …. They lead the way toward sensitive and informed appreciation and response to the values out of

which the riches of the general welfare are created.”).

The Court’s longstanding concerns regarding

chilling artistic and political expression are fully implicated here. Petitioner was convicted of making “terroristic threats” based on rap lyrics that he performed,

under a bombastic stage name, about his encounters

with law enforcement as a young African-American

man in the City of Pittsburgh. See Pet. 3-5. The performance was an homage to, and shared its name and

subject matter with, a 1988 song by iconic rap group

N.W.A. expressing rage at the treatment of AfricanAmericans by police in Los Angeles. See Pet. 5. The

performance referenced petitioner’s own negative experiences with particular law enforcement officers and

the death of a friend who was killed by police. Id.

Criminalizing petitioner’s speech unquestionably raises

the significant risk of chilling other artistic and political

expression. E.g., Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995) (“music”

and “verse” are “unquestionably shielded” by the First

Amendment); see also, e.g., Watts, 394 U.S. at 708 (even

“vituperative” language must be interpreted “‘against

the background of a profound national commitment to

the principle that debate on public issues should be uninhibited, robust, and wide-open’”).

17

The risk of chilling effects is heightened by the fact

that the speech here occurred online. Users of social

media sites such as YouTube and Facebook “employ

these websites to engage in a wide array of protected

First Amendment activity on topics ‘as diverse as human thought.’” Packingham, 137 S. Ct. at 1735-1736

(quoting Reno, 521 U.S. at 870). Such performative expression can and does include hyperbolic, rough, discomfiting language—especially on a site like YouTube,

which was built for users to directly upload and share

videos and recordings of themselves performing. Cf.

Watts, 394 U.S. at 708 (“The language of the political

arena ... is often vituperative, abusive, and inexact.”).

Here, the rap lyrics and performance for which petitioner was ultimately convicted were uploaded to

YouTube and Facebook, and the supposed threats contained in the lyrics were discovered by law enforcement agents who were actively monitoring social media

accounts affiliated with the petitioner. Pet. 5; see also,

e.g., Packingham, 137 S. Ct. at 1734; Elonis, 135 S. Ct.

at 2006.

The Internet—and in particular social media—is

the largest and most important public forum on the

planet. See Packingham, 137 S. Ct. at 1735 (“[I]n identifying the most important places (in a spatial sense) for

the exchange of views, today the answer is clear. It is

cyberspace ... and social media in particular.”). And it

is also the most easily surveilled. Just as in Watts,

where a federal investigator infiltrated a public political rally and made an arrest based on offensive political

statements, 394 U.S. at 708, law enforcement now infiltrates and monitors political and artistic fora on the Internet. See Packingham, 137 S. Ct. at 1734; Elonis, 135

S. Ct. at 2006. The ease with which government agents

may monitor speech online greatly magnifies the poten-

18

tial chilling effects caused by confusion over the scope

of the “true threats” exception. Cf. Ferber, 458 U.S. at

768-769 (statutes permitting punishment of speech

must be narrowly drawn to avoid chilling effects);

Gooding v. Wilson, 405 U.S. 518, 521-522 (1972) (same).

The confused state of the law further intensifies

those risks. For example, the Supreme Court of Pennsylvania and the Third Circuit have adopted opposing

views of what is required to establish a “true threat.”

Compare Pet. App. 17a-22a (adopting subjective test)

with United States v. Elonis, 730 F.3d 321, 331 n.7 (3d

Cir. 2013) (“[O]ur test asks whether a reasonable

speaker would foresee the statement would be understood as a threat.”), rev’d on other grounds, 135 S. Ct.

2001 (2015). The lack of clarity over how the First

Amendment applies, even between courts with geographically overlapping jurisdictions, makes it all the

more likely that the specter of “criminal threats” liability will chill protected expression.

B. Objective Analysis Is A Critical Safety Valve

For Protecting Free Expression

This Court has explained that “no reasonable

speaker” would engage in expression that could be punished by the state when the “only defense to a criminal

prosecution would be that [the speaker’s] motives were

pure.” WRTL, 551 U.S. at 468. The specific error

committed by the Supreme Court of Pennsylvania

here—adopting a purely subjective intent test for

whether speech is an unprotected “true threat”—is

likely to chill free expression for that reason and several others.

First, a subjective-intent-only test makes it harder

for courts of appeals to reject criminal liability for

19

speech that, while controversial or offensive, is objectively non-threatening. A defendant’s subjective intent

is classically a question of fact for a jury. For subjective-analysis-only courts, like the Ninth Circuit, whether speech is a “true threat” thus reduces to a fact issue.

See, e.g., Melugin v. Hames, 38 F.3d 1478, 1485 (9th Cir.

1994). And factfinding typically is (and should be) exceedingly difficult to overturn on appeal.

When courts adopt a subjective-intent-only standard, then, they effectively insulate the “true threats”

determination from appellate review. That was the

case here: Applying “our appellate standard of review,” the Supreme Court of Pennsylvania treated the

subjective intent question as a finding of fact and asked

only whether “competent evidence” supported it. Pet.

App. 22a.

Such insulation is dangerous. Courts are the appropriate final arbiters of the scope of the First

Amendment, especially for speakers who are unpopular

or lack political power or social capital. Hampering appellate courts’ ability to intercede on behalf of unpopular or controversial speakers undercuts free expression

and undermines one of the most important functions of

judges in a free society: upholding the Bill of Rights

against majoritarian encroachment. See, e.g., Arizona

Free Enter. Club’s, 564 U.S. at 754 (“[T]he whole point

of the First Amendment is to protect speakers against

unjustified government restrictions on speech, even

when those restrictions reflect the will of the majority.”); Johnson, 491 U.S. at 414 (“If there is a bedrock

principle underlying the First Amendment, it is that

the government may not prohibit the expression of an

idea simply because society finds the idea itself offensive or disagreeable.”) see also West Virginia State Bd.

of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (“The

20

very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities …

and to establish them as legal principles to be applied

by the courts.”). The deferential standard of review

applicable to findings of fact does not sufficiently protect someone who faces imprisonment for unpopular

speech.

Second, even where a defendant might have some

intent to intimidate, that alone cannot be enough. Cf.

WRTL, 551 U.S. at 468 (subjective-intent-only test

“could lead to the bizarre result that identical [speech]

could be protected speech for one speaker, while leading

to criminal penalties for another”). Many forms of art,

political theatre, and therapeutic expression are driven

by and evoke genuine feelings of rage or despair. That is

true not just of the music of artists like N.W.A. or

Eminem,6 but also of other forms of provocative art that

explore themes of violence.7 And it is true here. Using a

fictional persona, petitioner channeled feelings of powerlessness and frustration related to his arrest by local law

6

See Oral Arg. Tr. 41, 48-49, Elonis v. United States, No. 13983 (U.S. Dec. 1, 2014) (Roberts, C.J., discussing “very inflammatory language” in Eminem’s lyrics and wondering whether the

absence of a reasonable-person analysis would “subject to prosecution the lyrics that a lot of rap artists use”).

7

For example, Los Angeles artist Alex Schaefer was visited

by police after he began depicting bank branches on fire in response to the 2008 financial crisis. See Romero, Banks-on-Fire

Paintings by Artist Alex Schaefer Inspire LAPD Concern: Now

Collectors Willing to Pay Thousands, LA Weekly (Sept. 7, 2011).

Cf. Kerr, Aesthetic Play and Bad Intent, 103 Minn. L. Rev. Headnotes 101, 103-104 (2018) (discussing difficulty of determining

what counts as art in era of “novel media” like rap and performance art; concluding that audience reaction is critical to the delineation).

21

enforcement into his lyrics. Pet. 5; Pet. App. 12a. The

lyrics incorporated rude language and graphic, violent

imagery as part of a musical performance documenting

and interpreting petitioner’s experiences, in a manner

consistent with the rap genre. Pet. 3. They were posted

online to a page associated with his persona and followed

by his fans. See Pet. App. 106a.

Objective analysis is much better at distinguishing

between a genuine threat and protected expression motivated by real pain or anger. Cf. Snyder, 562 U.S. at

460-461 (“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and ...

inflict great pain.... [W]e cannot react to that pain by

punishing the speaker.”). Objective analysis thus helps

ensure “sufficient breathing room for protected

speech.” Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 620 (2003). By contrast, and as

this case demonstrates, critical context is rendered

largely irrelevant under a subjective-intent-only standard. See, e.g., Pet. App. 22a. And all of this is doubly

true online, where background facts may be hard to ascertain, where content is often designed to titillate and

provoke, where hyperbole is common, and where context is all the more important to grasp the meaning of

disembodied words, images, and media.8

An objectivity requirement ensures that only real

threats of violence are subject to criminal sanctions.

8

Moreover, the gap between a speaker’s intentions and the

objective capacity to commit real-world harm becomes a chasm in

the context of online speech. Ugly and offensive forms of provocation—“trolling,” in common parlance—are rampant online. Only

by objectively considering the full context could a court fairly determine whether speech in fact conveys to a reasonable observer

“a serious expression of an intent to commit” violence. Black, 538

U.S. at 359 (majority opinion).

22

See Jeffries, 692 F.3d at 480. It ensures that the “true

threats” exception remains anchored to its ultimate

purpose—protecting listeners from genuine “fear of violence … and from the possibility that the threatened

violence will occur.” R.A.V., 505 U.S. at 388. Requiring

speech to be both objectively threatening to a reasonable listener and subjectively intended as such will help

ensure that the “true threats” exception does not chill

protected expression.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ILYA SHAPIRO

TREVOR BURRUS

MICHAEL FINCH

CATO INSTITUTE

1000 Massachusetts Avenue NW

Washington, DC 20001

JOHN W. WHITEHEAD

DOUGLAS R. MCKUSICK

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

MARCH 2019

ARI SAVITZKY

Counsel of Record

PAUL VANDERSLICE

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Avenue NW

Washington, DC 20006

(202) 663-6000

ari.savitzky@wilmerhale.com

MARK C. FLEMING

JAMES BOR-ZALE

RAUVIN JOHL

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109