Amicus Curiae Brief — Billy Raymond Counterman, Petitioner v. Colorado

No. 22-138

In the Supreme Court of the United States

__________

Billy Raymond Counterman,

Petitioner,

v.

The People of the State of Colorado,

Respondent.

__________

On Petition for a Writ of Certiorari to the

Colorado Court of Appeals, Division II

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE SUPPORTING PETITIONER

__________

Trevor Burrus

Jay R. Schweikert

Counsel of Record

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 216-1461

jschweikert@cato.org

September 12, 2022

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 3

I. THE COURT SHOULD ADDRESS PERVASIVE

CONFUSION OVER THE “TRUE THREATS”

EXCEPTION TO THE FIRST AMENDMENT .......... 3

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 ........................................................ 8

II. THE COURT SHOULD EMPHASIZE THAT THE

“TRUE THREATS” EXCEPTION IS NARROW ...... 10

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

CONCLUSION .......................................................... 15

ii

TABLE OF AUTHORITIES

Cases

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

Arizona Free Enter. Club’s Freedom Club PAC v.

Bennett, 564 U.S. 721 (2011) ................................. 14

Ashcroft v. ACLU, 542 U.S. 656 (2004) ................... 2, 4

Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) .. 13

Brandenburg v. Ohio, 395 U.S. 444 (1969) ............... 11

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)5, 9, 10,

13

FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449

(2007) ................................................................ 11, 14

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .... 7, 8

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

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)

.................................................................................. 8

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

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

Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876

(2018) ........................................................................ 7

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 5

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

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

iii

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

Riley v. National Fed’n of the Blind of N.C., Inc., 487

U.S. 781 (1988) ......................................................... 7

Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) . 8

Snyder v. Phelps, 562 U.S. 443 (2011) ...................... 11

Texas v. Johnson, 491 U.S. 397 (1989) ..................... 11

United States v. Alvarez, 567 U.S. 709 (2012) 4, 11, 13

United States v. Cassel, 408 F.3d 622 (9th Cir. 2005) 6

United States v. Clemens, 738 F.3d 1 (1st Cir. 2013) . 6

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

2014) ..................................................................... 6, 9

United States v. Jeffries, 692 F.3d 473 (6th Cir. 2012)

.................................................................. 6, 9, 12, 13

United States v. Parr, 545 F.3d 491 (7th Cir. 2008) ... 6

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

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

Watts v. United States, 394 U.S. 705 (1969) (per

curiam)............................................................ 4, 5, 12

Constitutional Provisions

U.S. Const. amend. I .................................................... 3

Statutes

18 U.S.C. § 875(c) ......................................................... 5

Other Authorities

Harawa, Social Media Thoughtcrimes, 35 Pace L.

Rev. 366 (2014) ......................................................... 9

1

INTEREST OF AMICUS CURIAE1

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. Cato’s Project on Criminal

Justice was founded in 1999 and focuses in particular

on the scope of substantive criminal liability, the

proper and effective role of police in their communities,

the protection of constitutional and statutory safeguards for criminal suspects and defendants, citizen

participation in the criminal justice system, and accountability for law enforcement officers.

Cato is 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, amicus respectfully submits that

the Court should grant the petition.

1 Rule 37 statement: All parties were timely notified and

consented to the filing of this brief. No part of this brief was

authored by any party’s counsel, and no person or entity

other than amicus funded its preparation or submission.

2

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

sending a series of admittedly abrasive online messages to a musician. Lower courts are divided on

whether such behavior can be criminalized without evidence that the speaker actually intended to convey

any threat. This lack of clarity urgently requires this

Court’s attention.

Amicus writes to offer two primary 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 the content of

3

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.

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 prosecu-

4

tion 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 a

good 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, 535 U.S. at

573) (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., 505 U.S.

at 399 (internal quotation marks omitted); accord

United States v. Alvarez, 567 U.S. 709, 716–17 (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 Lyndon Johnson—was a true threat.

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

commentary, even if “a kind of very crude offensive

5

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

Id. at 707–08. 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.

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

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 2012–13. In that

6

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 (majority opinion). A minority 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

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”).

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, 632–33 (9th Cir.

2005) (requiring “that the speaker subjectively intended the

speech as a threat”).

7

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, 571–72 (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 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,

868–69 (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).

8

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 333–39, 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, 187–88 (1964) (opinion of Brennan,

J.)).

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.

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 383–84.

9

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. 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 Colorado Court of Appeals’ 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, Twitter, and YouTube

are the most 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 1735–36; Elonis, 135 S. Ct. at 2004–05 (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.”).

10

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.

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.

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 Colorado Court of

11

Appeals 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, contentbased 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 716–17 (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–

30 (false statements about receiving military honors);

Snyder v. Phelps, 562 U.S. 443, 460 (2011) (picketing

of military funerals, which was “certainly hurtful”);

Stevens, 559 U.S. at 465–66 (depictions of animal cruelty, including “crush videos” that showed “women

slowly crushing animals to death”); Texas v. Johnson,

491 U.S. 397, 419–21 (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).

12

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 707–08. 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 358–59; 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 359–60 (majority opinion); id. at 366–

67 (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 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.

13

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 “wellfounded fear” requirement. Jeffries, 692 F.3d at 485–

86 (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 criminal penalties on

protected speech is a stark example of speech suppression.”).

By contrast, the decision of the Colorado Court of

Appeals will, if allowed to stand, lower the bar that the

14

government must meet before criminalizing free expression. It allows for a criminal conviction without

any evidence that speaker intended to convey a threat,

effectively creating a negligence standard for “true

threats.” 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 First Amendment principles. The Court should

take up this case to ensure that the “true threats” exception to the First Amendment remains narrow.

15

CONCLUSION

For the foregoing reasons, and those described by

the Petitioner, this Court should grant the petition.

Respectfully submitted,

Trevor Burrus

Jay R. Schweikert

Counsel of Record

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 216-1461

jschweikert@cato.org

September 12, 2022