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.

COLORADO,

Respondent.

__________________________

On Writ of Certiorari to the

Colorado Court of Appeals, Division II

BRIEF OF HUMAN RIGHTS FOR KIDS

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

Adam C. Pollet

Joel E. Hoffman

Daniel Morris

Zack W. Lindsey

Paige C. Spraker

Tuong-anh T. Pham

EVERSHEDS SUTHERLAND (US) LLP

700 Sixth Street, NW, Suite 700

Washington, DC 20001-3980

(202) 383-0100

John H. Fleming

*Counsel of Record

EVERSHEDS SUTHERLAND (US) LLP

999 Peachtree Street, NE, Suite 2300

Atlanta, GA 30309-3996

(404) 853-8000

johnfleming@eversheds-sutherland.com

Suzanne S. La Pierre

Emily Virgin

James Dold

Tanvi Shah

HUMAN RIGHTS FOR KIDS

EVERSHEDS SUTHERLAND (US) LLP P.O. Box 5960

12255 El Camino Real, Suite 100 Washington, DC 20016

(202) 573-7758

San Diego, CA 92130-2071

(858) 252-6502

Timothy J. McCaffrey

EVERSHEDS SUTHERLAND (US) LLP

227 W Monroe Street, Suite 6000

Chicago, IL 60606

(312) 724-9006

March 1, 2023

SUPREME COURT PRESS

Counsel for Amicus Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iv

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

SUMMARY OF ARGUMENT .................................... 1

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

I.

THE TRUE THREAT EXCEPTION TO FIRST

AMENDMENT PROTECTION OF SPEECH MUST

BE BASED ON THE TOTALITY OF THE CIRCUMSTANCES, REQUIRING EVIDENCE OF BOTH

OBJECTIVE HARM AND SPECIFIC INTENT ............ 3

A. This Court’s Prior Decisions Require

Evidence of Both Objective Harm and

Specific Intent to Establish a True

Threat .......................................................... 3

B. To Be “Extremely Limited” and

“Narrowly Circumscribed” as the First

Amendment Commands, the True

Threat Exception Requires a Finding of

Specific Intent ............................................. 5

C. The So-Called Objective Test, Focusing

Solely on the Effect of the Challenged

Speech on the Listener, Is Only Appropriate for Establishing the Conduct

Element of the True Threat Exception ...... 7

D. A Comprehensive Analysis of the

Context in Which Speech Is Offered Is

Required to Determine If Both the

Conduct and the Speaker’s Intent

Elements of the True Threat Exception

Are Satisfied.............................................. 10

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TABLE OF CONTENTS – Continued

Page

II. THE NATURE OF THE MODERN WORLD’S

COMMUNICATIONS MEDIA, COMBINED WITH

THE UNIQUE CHARACTERISTICS OF CHILDREN,

UNDERSCORES THE NEED FOR A TOTALITY

OF THE CIRCUMSTANCES TEST ......................... 12

A. Online Speech, One of the Most

Common Methods of Expression in

Today’s World, by Its Nature Creates

Serious Risks of Misunderstanding the

Speaker’s Words and Intent ..................... 13

B. The Relevant Contextual Aspects of

Speech That Must Be Considered Will

Vary Widely in Online Communication,

Especially That of Children...................... 14

C. Failure to Require a Finding of Specific

Intent to Satisfy the True Threat

Exception Especially Burdens Speech

Where the Challenged Speech Is ChildGenerated and Delivered Via Social

Media ......................................................... 17

1. Children Throughout the Country

Are Subject to Both State and

Federal Prosecution as Adults for

Threat-Based Offenses......................... 17

2. Children’s Cognitive Immaturity and

Speaking Style Should Be Considered in Establishing the Appropriate

Mens Rea Requirement of the True

Threat Doctrine ................................... 20

iii

TABLE OF CONTENTS – Continued

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3. An Objective Test Reduces the

Requisite Mental State for Criminality to Mere Negligence, a Standard

That When Applied to Children Will

All Too Frequently Result in Loss of

Their First Amendment Right of

Free Speech ......................................... 24

4. Only Upon a Showing of Subjective

Intent to Transmit a Threat, Considering the Totality of the Circumstances, Should Children Forfeit First

Amendment Protection ....................... 29

5. Application of the Specific Intent

Test Standing Alone Can Result in

Unfair Punishment for Kids Simply

Being Kids ........................................... 30

CONCLUSION.......................................................... 33

iv

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Doe v. Pulaski Cnty. Special Sch. Dist.,

306 F.3d 616 (8th Cir. 2002) ....................... 24, 28

Eddings v. Oklahoma,

455 U.S. 104 (1982) ........................................... 21

Elonis v. United States,

575 U.S. 723 (2015) ................. 6, 7, 12, 15, 24, 29

Graham v. Florida,

560 U.S. 48 (2010) ....................................... 21, 26

In re S.W.,

45 A.3d 151 (D.C. 2012) .................................... 10

Johnson v. Texas,

509 U.S. 350 (1993) ........................................... 21

Miller v. Alabama,

567 U.S. 460 (2012) ..................................... 20, 26

Morissette v. United States,

342 U.S. 246 (1952) ........................................... 29

North Carolina v. Taylor,

866 S.E.2d 740 (N.C. 2021) ............................... 31

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) ....................................... 13

Pennsylvania v. Knox,

190 A.3d 1146 (Pa. 2018) ............................ 30, 31

Perez v. Florida,

580 U.S. 1187 (2017) ........................................... 5

Planned Parenthood of the Columbia/

Willamette, Inc. v. American Coalition of

v

TABLE OF AUTHORITIES – Continued

Page

Life Activists,

290 F.3d 1058 (9th Cir. 2002) ....................... 9, 10

Porter v. Ascension Parish Sch. Bd.,

393 F.3d 608 (5th Cir. 2004) ............................... 8

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ............................... 2, 3, 8, 29

Reno v. ACLU,

521 U.S. 844 (1997) ............................................. 6

Rogers v. United States,

422 U.S. 35 (1975) ............................................... 6

Roper v. Simmons,

543 U.S. 551 (2005) ..................................... 21, 26

Thompson v. Oklahoma,

487 U.S. 815 (1988) ........................................... 21

United States v. Alkhabaz,

104 F.3d 1492 (6th Cir. 1997) ............................. 8

United States v. Alvarez,

567 U.S. 709 (2012) ............................................. 6

United States v. Bagdasarian,

652 F.3d 1113 (9th Cir. 2011) ........................... 15

United States v. Cassel,

408 F.3d 622 (9th Cir. 2005) ............................... 7

United States v. Davila,

461 F.3d 298 (2d Cir. 2006) ................................. 8

United States v. Heineman,

767 F.3d 970 (10th Cir. 2014) ............................. 7

United States v. Jeffries,

692 F.3d 473 (6th Cir. 2012) ............. 9, 11, 16, 25

vi

TABLE OF AUTHORITIES – Continued

Page

United States v. Parr,

545 F.3d 491 (7th Cir. 2008) ............................... 7

United States v. White,

670 F.3d 498 (4th Cir. 2012) ............................... 8

Virginia v. Black,

538 U.S. 343 (2003) ................... 3, 4, 5, 6, 7, 8, 12

Watts v. United States,

394 U.S. 705 (1969) ........... 3, 4, 5, 6, 7, 10, 11, 12

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ........ 2, 3, 4, 5, 6, 7, 8, 10, 12, 19,

.......................... 24, 25, 29, 31, 33

FEDERAL STATUTES

18 U.S.C. § 16 ............................................................ 19

18 U.S.C. § 115 .......................................................... 19

18 U.S.C. § 871(a) ..................................................... 19

18 U.S.C. § 873 .......................................................... 19

18 U.S.C. § 875(c) ...................................................... 19

18 U.S.C. § 876(c) ...................................................... 19

18 U.S.C. § 878 .......................................................... 19

18 U.S.C. § 879 .......................................................... 19

18 U.S.C. § 1503(a) ................................................... 19

18 U.S.C. § 1951(a) ................................................... 19

18 U.S.C. § 5032 ........................................................ 19

vii

TABLE OF AUTHORITIES – Continued

Page

STATE STATUES

Fla. Stat. § 985.557(1)(b) .......................................... 19

OTHER AUTHORITIES

Alison Grace Johansen,

Tips for Protecting Your Social Media

Privacy, NortonLifeLock (Feb. 9, 2022),

https://us.norton.com/blog/privacy/

protecting-privacy-social-media# ...................... 11

Alyson Shontell,

A Teen Was Jailed for a ‘Sarcastic’

Facebook Post Even Though the Cops

Never Saw the Actual Conversation,

BUS. INSIDER (Feb. 14, 2014), http://www.

businessinsider.com/justin-cartersfacebook-comment-scandal-2014-2 ................... 22

Alyson Shontell,

When A Teen’s ‘Sarcastic’ Facebook

Message Goes Terribly Wrong,

BUS. INSIDER (July 8, 2013), https://www.

businessinsider.com/teen-justin-carterfaces-trial-and-jail-for-facebook-comment2013-7 ................................................................ 27

Am. Acad. of Child & Adolescent Devel.,

Threats by Children: When are they

Serious?, 2019, https://www.aacap.org/

AACAP/Families_and_Youth/Facts_for_

Families/FFF-Guide/Childrens-ThreatsWhen-Are-They-Serious-065.aspx .............. 22, 23

viii

TABLE OF AUTHORITIES – Continued

Page

Brooke Auxier & Monica Anderson,

Social Media Use in 2021,

Pew Research Ctr. (Apr. 7, 2021) ..................... 13

Callum Borchers,

Retweets ≠ endorsements? Oh, Yes, They

Do, Say the Hatch Act Police, THE

WASHINGTON POST, https://www.

washingtonpost.com/news/the-fix/wp/

2017/10/04/retweets-endorsements-hatchact/...................................................................... 16

CBS19 News,

Minors Charged for Making Threats

Against Schools, Dec. 8, 2022, https://

www.cbs19news.com/story/45405622/

minors-charged-for-making-threatsagainst-schools .................................................. 23

Charles Puzzanchera, Melissa Sickmund,

Hunter Hurst, Youth Younger than 18

Prosecuted in Criminal Court: National

Estimate, 2019 Cases, National Center for

Juvenile Justice (2019), available at

https://www.ojp.gov/sites/g/files/

xyckuh176/files/media/document/youthprosecuted-criminal-court-2019-cases.pdf ........ 18

CollegeGrad,

Ten Things You Should Never Post on

Social Media, https://collegegrad.com/

blog/10-things-you-should-never-post-onsocial-media ....................................................... 11

Elizabeth Scott, Thomas Grisso, Marsha

Levick & Laurence Steinberg, Juvenile

ix

TABLE OF AUTHORITIES – Continued

Page

Sentencing Reform in a Constitutional

Framework, 88 TEMP. L. REV.675 (2016) .......... 21

Emily A. Vogels, et al.,

Teens, Social Media and Technology 2022,

Pew Research Ctr. (Aug. 10, 2022) ................... 13

Frederick Schauer,

Slippery Slopes, 99 HARV. L. REV. 361

(1985) ................................................................. 11

Human Rights for Kids,

A Crime Against Humanity: The Mass

Incarceration of Children in the United

States, forthcoming publication (2023) ............. 18

Jennifer S. Hunt,

Race, Ethnicity and Culture in Jury

Decision Making, ANNUAL REV. LAW SOC.

SCI. (2015) .......................................................... 11

Jessica Bennett,

OMG! The Hyperbole of Internet-Speak,

N.Y. TIMES (Nov. 28, 2015), https://www.

nytimes.com/2015/11/29/fashion/death-byinternet-hyperbole-literally-dying-overthiscolumn.html ................................................ 23

John Sivils,

Online Threats: The Dire Need for a

Reboot in True Threats Jurisprudence,

72 SMU L. REV. F. 51 (2019) ............................. 14

Kenneth L. Karst,

Threats and Meanings: How the Facts

Govern First Amendment Doctrine,

58 STAN. L. REV. 1337 (2006) ............................ 28

x

TABLE OF AUTHORITIES – Continued

Page

Kristin N. Henning,

Criminalizing Normal Adolescent

Behavior in Communities of Color: The

Role of Prosecutors in Juvenile Justice

Reform, 98 CORNELL L. REV. 383 (2013) ........... 20

Lyrissa Barnett Lidsky & Linda Riedemann

Norbut, #I🔫U: Considering the Context of

Online Threats, 106 CALIF. L. REV. 1886

(2018) ......11, 14, 15, 16, 22, 23, 24, 25, 26, 27, 28

Madeline Merinuk,

How the Thumbs-Up Emoji Sparked a

Generational War That No One Is

Winning, TODAY (Oct. 13, 2022),

https://www.today.com/news/news/

thumbs-up-emoji-debate-rcna52089 ................. 15

Maureen O’Connor,

Addicted to Likes: How Social Media

Feeds Our Neediness, N.Y. MAG. (Feb. 20,

2014), https://perma.cc/HQ33-VGFY ................ 22

Max Londberg,

Belton High teen charged with felony after

threat on Snapchat, KANSAS CITY STAR

(Feb. 8, 2017), http://www.kansascity.com/

news/local/crime/article131622874.html .......... 27

Megan R. Murphy,

Context, Content, Intent: Social Media's

Role in True Threat Prosecutions,

168 U. PA. L. REV. 733 (2020) ............................ 16

Michal Buchhandler-Raphael,

Overcriminalizing Speech,

36 CARDOZO L. REV. 1667 (2015) ....................... 22

xi

TABLE OF AUTHORITIES – Continued

Page

Nat’l Institute of Mental Health,

The Teen Brain: 7 Things to Know

(Revised 2023), https://www.nimh.nih.gov/

health/publications/the-teen-brain-7things-to-know ................................................... 30

Patrick Griffin, Sean Addie, Benjamin Adams,

and Kathy Firestine, Trying Juveniles as

Adults: An Analysis of State Transfer

Laws and Reporting, OJJDP (September

2011), available at https://www.ojp.gov/

pdffiles1/ojjdp/232434.pdf ................................. 17

Renee Griffin,

Searching for Truth in the First

Amendment’s True Threat Doctrine,

120 MICH. L. REV. 721 (2022) .......... 11, 14, 30, 31

Richard E. Redding,

Juvenile Transfer Laws: An Effective

Deterrent to Delinquency?, OJJDP (June

2010), available at https://www.ojp.gov/

pdffiles1/ojjdp/220595.pdf ................................. 17

U.S. Dept. of Justice, OJJDP,

Statistical Briefing Book, OJJDP

available at https://www.ojjdp.gov/

ojstatbb/corrections/qa08700.asp ...................... 17

U.S. Dept. of Justice, OJP,

National Prison Rape Elimination

Commission Report, OJP (June 2009),

available at https://www.ojp.gov/pdffiles1/

226680.pdf ......................................................... 17

1

INTEREST OF AMICUS CURIAE1

Human Rights for Kids (HRFK) is a non-profit

organization dedicated to the promotion and protection of the human rights of children. HRFK combines

research and public education, coalition building and

grassroots mobilization, as well as policy advocacy and

strategic litigation, to advance critical human rights

on behalf of children. A central focus of its work is

advocating in state and federal legislatures and courts

for comprehensive justice reform for children consistent

with the U.N. Convention on the Rights of the Child.

SUMMARY OF ARGUMENT

How often do parents tell their children to be

careful about what they say online? Likely every day.

Yet few parents would envision their child being

prosecuted or imprisoned for a hastily crafted, tactless

social media post. Permitting the government to criminalize speech through a negligence or reckless mens

rea standard will disproportionately harm children,

who, because of their under-developed brains and

impetuous nature, are more likely to engage in speech

that a reasonable person would find offensive, abrasive,

or threatening. The Court should ensure parents do

not have to fear such a fate.

1 No counsel for a party authored this brief in whole or in part,

and no entity or person, other than amicus curiae, or its counsel,

made a monetary contribution intended to fund the preparation

or submission of this brief.

2

Americans’ First Amendment right to free speech

encompasses broad protections. Any exceptions to this

right must be clearly delineated, extremely limited,

and narrowly circumscribed to avoid chilling protected

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

(1992). Amicus argues that for the “true threat” exception to meet this standard, the speech at issue must

be both objectively threatening to a reasonable listener

and specifically intended by the speaker to constitute

a threat, evaluated in the context of the totality of the

circumstances.

In particular, amicus calls to the Court’s attention

the impact of the Court’s choice of a mens rea standard on the rights of children. Kids are inveterate users

of the internet—contemporary society’s primary form

of communication. Although still kids, they are subject

to adult criminal sanctions for speech involving threats

because of transfer laws that allow them to be prosecuted in adult court. The importance of the First

Amendment’s free speech protections requires a finding

of specific intent for the true threat exception to apply,

as this is the most narrowly tailored means of avoiding

the harm it is intended to prevent without unduly

burdening the speaker’s rights. This standard is particularly important when children’s speech is involved,

given their cognitive immaturity and the attendant

inability to self-regulate.

People—especially children—speak differently on

social media platforms than face-to-face. The absence

of contextual clues found in one-on-one encounters

can lead to serious misunderstandings. The application

of an objective-only or subjective-only test can result

in overcriminalization, particularly of children. To avoid

this injustice, amicus urges the Court to adopt a

3

“totality of the circumstances” test focusing on all

relevant contextual factors for determining whether

pure speech falls within the true threat exception—a

test that requires a showing of both a reasonable

listener’s objective fear of violence and the specific

intent of the speaker to communicate a threat.

ARGUMENT

I.

THE TRUE THREAT EXCEPTION TO FIRST AMENDMENT PROTECTION OF SPEECH MUST BE BASED

ON THE TOTALITY OF THE CIRCUMSTANCES,

REQUIRING EVIDENCE OF BOTH OBJECTIVE HARM

AND SPECIFIC INTENT.

Any exception to the First Amendment’s protections of speech must be extremely limited, clearly

delineated, and narrowly circumscribed to avoid

chilling protected speech or otherwise frustrating the

First Amendment’s purposes. E.g., R.A.V. v. City of

St. Paul, 505 U.S. 377 (1992). For the “true threat”

exception to meet this standard, the speech at issue

must be both objectively threatening to a reasonable

listener and specifically intended by the speaker to

constitute a threat.

A. This Court’s Prior Decisions Require

Evidence of Both Objective Harm and

Specific Intent to Establish a True Threat.

This Court’s decisions in Watts and Black point

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

reversed the conviction of an 18-year-old defendant

for threatening, at a rally against the Vietnam War,

4

to take the life of the President. Looking at the context

in which the words were uttered, the Court concluded

that the statement could not be deemed threatening

because it was made during a political debate at a

public rally at the Washington Monument—circumstances where such language is often “vituperative,

abusive, and inexact.” Id. at 706-08. Moreover, the

threat “was expressly made conditional upon an event

—induction into the Armed Forces—which petitioner

vowed would never occur.” Id. at 707. Tellingly, both the

defendant “and the crowd laughed after the statement

was made.” Id.

In a per curiam opinion, the Court held that

“[t]aken in context, and regarding the expressly conditional nature of the statement and the reaction of

the listeners, we do not see how it could be interpreted”

as anything other than “a kind of very crude offensive

method of stating a political opposition to the President.” Id. at 708.

In Virginia v. Black, 538 U.S. 343 (2003), the Court

turned its attention more directly to the subjective

intent of the speaker. A Virginia statute criminalized

the burning of crosses with an “intent to intimidate,”

but it provided that the conduct, standing alone, was

prima facie evidence of the requisite specific intent. Id.

at 348. The Court held that while “[t]he First Amendment permits Virginia to outlaw cross burnings done

with the intent to intimidate because burning a cross

is a particularly virulent form of intimidation,” id. at

363, the prima facie attribution of intent was unconstitutional, as it “strip[ped] away the very reason why

a State may ban cross burning with the intent to

intimidate.” Id. at 365 (emphasis added). The statute

unconstitutionally allowed the jury to infer, without

5

any evidence, a constitutionally required element of

the offense—that the speaker intended to intimidate.

Id.

Neither Watts nor Black looked solely to either the

objective effect on the listener or the subjective intent

of the speaker in analyzing the challenged speech,

but rather to a combination of the two. Reading the

decisions together further underscores the Court’s

application of a “totality of the circumstances” test,

focusing on contextual factors. As Justice Sotomayor

has explained:

Together, Watts and Black make clear that to

sustain a threat conviction without encroaching upon the First Amendment, States must

prove more than the mere utterance of

threatening words—some level of intent is

required. And these two cases strongly

suggest that it is not enough that a reasonable person might have understood the words

as a threat—a jury must find that the speaker

actually intended to convey a threat.

Perez v. Florida, 580 U.S. 1187, 1189 (2017) (Sotomayor,

J., concurring in denial of certiorari).

B. To Be “Extremely Limited” and “Narrowly

Circumscribed” as the First Amendment

Commands, the True Threat Exception

Requires a Finding of Specific Intent.

This Court’s First Amendment jurisprudence

considers criminal sanctions to be “matter[s] of special

concern” because of the significant risk that they “may

well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and

6

images.” Reno v. ACLU, 521 U.S. 844, 871-72 (1997).

A purely objective standard for criminal liability, such

as applied by the court below, which focuses solely on

the effect of the speech on the listener, reduces the

requisite mens rea to mere negligence by excluding any

evidence of whether the speaker intended to convey a

threat. A “specific intent” requirement provides assurance that a speaker will not be punished for speech

that might be misunderstood or taken out of context

by a recipient (actual or hypothetical), who may not

even be the speaker’s addressee.

Assessing a speaker’s intent, applying a “totality

of the circumstances” analysis, is consistent with the

Court’s decisions interpreting the narrow strictures

of the true threat exception established in Watts and

Black. In Elonis v. United States, 575 U.S. 723 (2015),

a majority of the Court agreed that a “guilty mind” is

a necessary element of the federal threat offense. Id.

at 734. This Court further explained that a “reasonable

person” standard “is inconsistent with the conventional

requirement for criminal conduct—awareness of some

wrongdoing.” Id. at 737-38. This approach is consistent

with the “heavy burden” on the government when

seeking to criminalize protected speech. United States

v. Alvarez, 567 U.S. 709, 726 (2012) (plurality opinion).

Justice Marshall long ago underscored that the

Court “should be particularly wary of adopting . . . a

[negligence] standard” when regulating pure speech,

because the “degree of deterrence would have substantial costs in discouraging the ‘uninhibited, robust, and

wide-open’ debate that the First Amendment is intended to protect.” Rogers v. United States, 422 U.S. 35,

47-48 (1975) (Marshall, J., concurring). Proof that a

7

speaker acted with specific intent prevents this chilling

effect.

Two circuits already interpret Black to require

evidence of a speaker’s specific threatening intent for

the true threat exception to apply. The Ninth Circuit

has emphasized that “[t]he clear import” of Black is

that “only intentional threats are criminally punishable consistently with the First Amendment.” United

States v. Cassel, 408 F.3d 622, 631 (9th Cir. 2005).

Similarly, the Tenth Circuit interprets Black to mean

that “in any true-threat prosecution,” the First Amendment requires the government to prove that “the

defendant intended the recipient to feel threatened.”

United States v. Heineman, 767 F.3d 970, 975 (10th Cir.

2014); see also United States v. Parr, 545 F.3d 491,

500 (7th Cir. 2008) (post-Black, the rule is “unclear”).

Under this Court’s decisions in Watts, Black, and

Elonis, those two circuits are correct. This Court

should make the rule clear by confirming that specific

intent, demonstrated through analysis of all the facts

and circumstances, is the applicable mens rea standard

in true threat analysis.

C. The So-Called Objective Test, Focusing

Solely on the Effect of the Challenged

Speech on the Listener, Is Only Appropriate for Establishing the Conduct Element

of the True Threat Exception.

The actus reus of a “true threat” is proved by

showing the impact the challenged communication

actually had on a reasonable listener given the context

of the remarks. This is commonly referred to as the

objective test. As the Sixth Circuit explained, the actus

reus of a true threat is “a communication . . . that a

8

reasonable person . . . would perceive . . . as being communicated to effect some change or achieve some goal

through intimidation.” United States v. Alkhabaz, 104

F.3d 1492, 1495 (6th Cir. 1997).

Other circuits have similarly framed the conduct

element as requiring what a reasonable recipient would

understand as a threat. E.g., United States v. White,

670 F.3d 498, 508 (4th Cir. 2012) (“The physical act

of the crime—the actus reus—is the transmission of a

communication” that constitutes a threat); United

States v. Davila, 461 F.3d 298, 305 (2d Cir. 2006)

(“The test is an objective one—namely, whether an

ordinary, reasonable recipient who is familiar with

the context of the letter would interpret it as a threat

of injury.”); Porter v. Ascension Parish Sch. Bd., 393

F.3d 608, 616 (5th Cir. 2004) (“Speech is a ‘true

threat’ and therefore unprotected if an objectively

reasonable person would interpret the speech as a

‘serious expression of an intent to cause a present or

future harm.’”).

The purpose of criminalizing threats is to “‘protect

individuals from the fear of violence’ and ‘from the

disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened

violence will occur.’” Black, 538 U.S. at 359-60 (citing

R.A.V., 505 U.S. at 388). If no one could reasonably

feel threatened, then there is no crime. Evidence of

this conduct element thus is critical in establishing

criminal liability for allegedly threatening speech.

But without more, the objective test sweeps too broadly

in failing to protect a speaker’s rights.

Proponents of the objective-only analysis wrongly

argue that a speaker’s First Amendment rights are

adequately protected by “forc[ing] jurors to examine

9

the circumstances in which a statement is made.”

United States v. Jeffries, 692 F.3d 473, 480 (6th Cir.

2012). But criminalizing a statement merely because

it is objectively threatening to the recipient, even

though “considering the circumstances,” fails to protect

the speaker’s constitutional rights as the pre-Black

decision in Planned Parenthood of the Columbia/

Willamette, Inc. v. American Coalition of Life Activists,

290 F.3d 1058 (9th Cir. 2002) (en banc), demonstrates.

There, anti-abortion activists created “WANTED”

and “GUILTY” posters that identified doctors who

performed abortions and subsequently were murdered.

The group then circulated the posters on, among other

places, the internet. They also created a “Nuremberg

Files” website page, listing the names of murdered

physicians “lined out in black.” Id. at 1064–65. While

the posters did not explicitly threaten harm, the Ninth

Circuit en banc found that they constituted proscribed

threats under the objective test because the group “was

aware that a ‘wanted’-type poster would likely be

interpreted as a serious threat of death or bodily harm

by a doctor . . . given the previous pattern of ‘WANTED’

posters identifying a specific physician followed by that

physician’s murder.” Id. at 1063.

Significantly, however, the court also noted that

the first “WANTED” posters may originally have been

protected political speech, even though those and subsequent posters, circulated after previously “wanted”

individuals were murdered, were not. Id. at 1079. But

a reasonable person, having seen the earlier posters

and knowing that their targets had subsequently been

murdered, would have suffered the requisite fear of

harm the objective test requires. Id. The court therefore

concluded that excluding “true threats” from protected

10

speech “is not served by hinging constitutionality on

the speaker’s subjective intent or capacity to do (or not

to do) harm,” but rather on “how reasonably foreseeable

it is to a speaker that the listener will seriously take

his communication as an intent to inflict bodily harm.”

Id. at 1076.

As one of the Planned Parenthood dissents pointed

out, however, a listener’s mere awareness of prior

violent acts is insufficient to justify encroaching on

protected political speech. “[A] statement does not

become a true threat because it instills [generalized]

fear in the listener.” Id. at 1091 (Kozinski, J., dissenting). Rather, “for the statement to be a threat, it must

send the message that the speakers themselves—or

individuals acting in concert with them—will engage

in physical violence.” Id. (emphasis added). Absent

consideration of a speaker’s intent and knowledge at

the time of speaking, an innocent speaker could be

convicted of speech that when uttered would not have

been deemed illegal. Such a result cannot be squared

with the First Amendment.

D. A Comprehensive Analysis of the Context

in Which Speech Is Offered Is Required

to Determine If Both the Conduct and the

Speaker’s Intent Elements of the True

Threat Exception Are Satisfied.

“[A] determination of what a defendant actually

said is just the beginning of a threat analysis.” In re

S.W., 45 A.3d 151, 157 (D.C. 2012). “What is a threat

must be distinguished from what is constitutionally

protected speech.” Watts, 394 U.S. at 707. Illustrative

of the many contextual factors that need to be consid-

11

ered are the following: audience reaction,2 method of

delivery of the speech,3 privacy issues,4 racial bias,5

and cultural unfamiliarity.6

2 Watts, 394 U.S. at 708.

3 “[T]he method of delivering a threat illuminates context, and

a song, a poem, a comedy routine or a music video is the kind of

context that may undermine the notion that the threat was real.”

United States v. Jeffries, 692 F.3d 473, 482 (6th Cir. 2012).

4 People are so accustomed to using social media they forget to

check their privacy settings when they go online. See Lyrissa

Barnett Lidsky & Linda Riedemann Norbut, #I🔫U: Considering

the Context of Online Threats, 106 CALIF. L. REV. 1886, 1910

(2018); Tips for Protecting Your Social Media Privacy (Feb. 9,

2022), https://us.norton.com/blog/privacy/protecting-privacy-socialmedia#; see also Ten Things You Should Never Post on Social

Media (reminders to college kids and recent graduates about

the consequences of internet postings) https://collegegrad.com/

blog/10-things-you-should-never-post-on-social-media.

5 Use of a rap performance medium by a young black male

arguably makes it less likely that the questioned speech is a

threat, but it also may have the opposite result, triggering

racial bias and awakening stereotypes about the criminality of

young black men. See Renee Griffin, Searching for Truth in the

First Amendment’s True Threat Doctrine, 120 MICH. L. REV.

721, 740-41 (2022).

6 Social science research shows that jurors’ racial, ethnic and

cultural backgrounds influence their reactions to defendants.

Members of unpopular groups, including immigrants, minorities,

and anyone who seems “different” from the jurors, who are the

arbiters of reasonableness and who, statistically tend to be

members of majority groups, are more likely to seem threatening

than people who look, think, and speak like they do. See Jennifer

S. Hunt, Race, Ethnicity and Culture in Jury Decision Making,

ANNUAL REV. LAW SOC. SCI. 2015. 11:269-88; see also Frederick

Schauer, Slippery Slopes, 99 HARV. L. REV. 361, 377 (1985)

(noting that the dangers of a decisionmaker’s negative view of

12

This Court has recognized the need for a full

contextual analysis in its true threat jurisprudence,

regardless of whether it is looking at the content of

the speech or the intent of the speaker. This is, in fact,

the common thread among the Watts, Black, and

Elonis opinions. See Watts, 394 U.S. at 708 (“Taken

in context,” the Court concluded that the speaker’s

words could not be interpreted as anything other than

political hyperbole protected under the First Amendment); Black, 538 U.S. at 367 (in ruling a statute’s

prima facie evidence provision unconstitutional, the

Court concluded that it “ignores all of the contextual

factors that are necessary to decide whether a particular cross burning is intended to intimidate. The

First Amendment does not permit such a shortcut.”);

Elonis, 575 U.S. at 747 (in rejecting a speaker’s

argument that his rap-style vitriol in a social media post

deserved the same First Amendment protection as

similar lyrics in rap music performed for audiences,

Justice Alito noted that “context matters”) (Alito, J.,

concurring in part and dissenting in part).

II. THE NATURE OF THE MODERN WORLD’S

COMMUNICATIONS MEDIA, COMBINED WITH THE

UNIQUE CHARACTERISTICS OF CHILDREN,

UNDERSCORES THE NEED FOR A TOTALITY OF

THE CIRCUMSTANCES TEST.

The way in which people communicate is changing

rapidly. The national discourse has moved online,

where misunderstandings are frequent. Children, with

their cognitive immaturity and heavy use of new

media for communicating, are especially at risk for

the parties is likely to lead to oversuppression in applying free

speech principles).

13

such misunderstandings. These reasons necessitate a

test that requires both objective harm and specific

intent for the true threat exception.

A. Online Speech, One of the Most Common

Methods of Expression in Today’s World,

by Its Nature Creates Serious Risks of

Misunderstanding the Speaker’s Words

and Intent.

While in earlier times it may have been difficult

to identify the most important physical space for the

exchange of views, the marketplace of ideas is now,

without question, “cyberspace—the ‘vast democratic

forums of the Internet’ in general, and social media

in particular.” Packingham v. North Carolina, 137 S.

Ct. 1730, 1735 (2017) (internal citation omitted). The

reach of social media in America is massive. Seven out

of ten adult Americans use social media—up from

one in twenty in 2005.7 For example, 69% of Americans

use Facebook; 40% use Instagram; and, 25% use

Snapchat.8 Over half of the users visit these platforms

daily.9 A majority of American teens use platforms

catering to younger audiences—TikTok, Instagram,

and Snapchat.10 And 35% of American teens say

they use YouTube, TikTok, Instagram, Snapchat, or

Facebook “almost constantly.”11 Individuals use these

7 See Brooke Auxier & Monica Anderson, Social Media Use in

2021, Pew Research Ctr. (Apr. 7, 2021).

8 Id.

9 Id.

10 Emily A. Vogels, et al., Teens, Social Media and Technology

2022, Pew Research Ctr. (Aug. 10, 2022).

11 Id.

14

platforms to share their views on a wide range of

protected First Amendment topics, reflecting subjects

and positions as varied as the human mind can conjure.

Packingham, 137 S. Ct. at 1735.

The anonymity and unmediated colloquy of internet postings result in more spontaneous and less formal

speech than older forms of communication. The internet’s ubiquity and ease of access have exponentially

increased both the volume of discourse and audience

exposure. While in many cases this brings welcome

educational opportunities and the rich interplay of

ideas, it has simultaneously “magnif[ied] the potential

for a speaker’s innocent words to be misunderstood.”12

And misunderstandings do abound—in too many cases

triggering unjustified criminal investigation and

prosecution.

B. The Relevant Contextual Aspects of

Speech That Must Be Considered Will

Vary Widely in Online Communication,

Especially That of Children.

A comprehensive analysis of context is of paramount importance when the challenged speech involves

online communication, where judges belonging to an

older generation may misperceive the nature of new

technology and online communication.13 The internet’s

failure to provide traditional contextual clues that are

available in face-to-face interactions is responsible for

much of this confusion.14 With internet submissions,

12 Lidsky & Norbut, supra note 4, at 1885.

13 See Griffin, supra note 5, at 746.

14 John Sivils, Online Threats: The Dire Need for a Reboot in

True Threats Jurisprudence, 72 SMU L. REV. F. 51, 56 (2019).

15

the tone, body language, and other physical mannerisms of the speaker are not available to correct misimpressions. Social media users sometimes add emoticons

to their posts to compensate for the lack of contextual

clues. But while these “typographical representations

of facial expressions . . . were invented for the very

purpose of adding context to electronic communications . . . they too are subject to misunderstandings.”15

For example, although a “thumbs up” emoji is a common image, its interpretation varies across demographics. For Generation Z and younger crowds, the symbol

connotes passive aggression, while for the older

generation, it just means “ok.”16

To correctly interpret both the content of an

internet posting and the speaker’s intent, an analysis

of all relevant contextual factors is essential.17 Understanding the architecture of social media platforms and

the associated discourse conventions is a first step.

Snapchat deletes posts automatically, and a post’s fleeting existence, for example, limits understanding of it

to the unreliable, and possibly biased, memories of the

participants.18 Facebook dialogue is relatively civilized

15 Petitioner’s Br., at 49-50, No. 13-983, Elonis v. United States

(Aug. 2014).

16 See Madeline Merinuk, How the Thumbs-Up Emoji Sparked

a Generational War That No One Is Winning, TODAY (Oct. 13,

2022), https://www.today.com/news/news/thumbs-up-emoji-debatercna52089.

17 See United States v. Bagdasarian, 652 F.3d 1113, 1117 (9th

Cir. 2011) (reviewing message board postings “in the context of

all of the relevant facts and circumstances” and finding that the

prosecution failed to present sufficient evidence to meet either

the subjective intent or objective harm requirements).

18 Lidsky & Norbut, supra note 4, at 1911.

16

when compared with Reddit’s,19 but even within those

platforms, speakers of different ages and backgrounds

have different conventions, “adding another layer of

contextual complexity.”20 Speech among routine users

or “insiders” of these platforms can easily be misunderstood by “outsiders”—those unfamiliar with the

site’s conventions.21 Twitter’s 280-character limit eliminates nuance. Viewing only one of a series of tweets22

makes it difficult to determine whether a post is intended as a threat or rather meant as a joke, sarcasm,

or hyperbole. This analysis is even more complicated

if the tweet includes a reposting of a third party’s submission or a hyperlink to another site, if the incorporated or referenced posting is scrutinized absent the

packaging of its transmitter.23

19 Id. at 1924-25.

20 See id. at 1891.

21 Id. at 1909 (“[W]ithin Facebook the way fifteen-year-old teens

speak to each other is unlikely to be the same way that fortyeight-year-old lawyers speak to each other.”).

22 See Jeffries, 692 F.3d at 482 (Facebook messages linked with

a video via YouTube are part of a single communication and form

the backdrop for evaluating the video’s content).

23 See Megan R. Murphy, Context, Content, Intent: Social Media's

Role in True Threat Prosecutions, 168 U. PA. L. REV. 733, 734-35

(2020); see also Callum Borchers, Retweets ≠ endorsements? Oh,

Yes, They Do, Say the Hatch Act Police (describing the decision

of the U.S. Office of Special Counsel to issue a warning to U.N.

Ambassador Nikki Haley, whose retweet of a tweet supporting

a candidate for political office was interpreted as an endorsement

of the candidate in violation of the Hatch Act), https://www.

washingtonpost.com/news/the-fix/wp/2017/10/04/retweetsendorsements-hatch-act/.

17

C. Failure to Require a Finding of Specific

Intent to Satisfy the True Threat Exception Especially Burdens Speech Where the

Challenged Speech Is Child-Generated

and Delivered Via Social Media.

1. Children Throughout the Country Are

Subject to Both State and Federal

Prosecution as Adults for Threat-Based

Offenses.

More than 30 years ago, lawmakers, responding

to the now-debunked Super Predator Theory, passed

legislation making it easier to transfer children from

juvenile to criminal court in nearly every state.24

“These reforms lowered the minimum age for transfer,

increased the number of transfer-eligible offenses, or

expanded prosecutorial discretion and reduced judicial

discretion in transfer decision-making.”25 As a result,

over a six-year period beginning in 1993, the number

of children housed in adult jails more than doubled.26

By 2009, approximately 200,000 children were being

charged as adults annually.27 While today that number

24 Patrick Griffin, Sean Addie, Benjamin Adams, and Kathy

Firestine, Trying Juveniles as Adults: An Analysis of State Transfer

Laws and Reporting, OJJDP (September 2011), available at

https://www.ojp.gov/pdffiles1/ojjdp/232434.pdf.

25 Richard E. Redding, Juvenile Transfer Laws: An Effective

Deterrent to Delinquency?, OJJDP (June 2010), available at

https://www.ojp.gov/pdffiles1/ojjdp/220595.pdf.

26 Statistical Briefing Book, OJJDP available at https://www.

ojjdp.gov/ojstatbb/corrections/qa08700.asp.

27 National Prison Rape Elimination Commission Report, at 155,

OJP (June 2009), available at https://www.ojp.gov/pdffiles1/

226680.pdf.

18

has fallen to 53,000 annually,28 every state in the

country allows children to be tried, convicted, and sentenced as adults. As a result, nearly every issue that

comes before this Court that deals with the government’s ability to prosecute or punish specific conduct,

necessarily implicates the constitutional rights of children, even if the defendant in the particular case before

the Court was already an adult at the time the offense

occurred.

HRFK research shows that more than 37,000

people are currently incarcerated in U.S. prisons for

crimes they committed as children.29 This constitutes

approximately 3.7% of the entire national prison population. Youth whose crimes were committed when they

were sixteen or seventeen years old make up more than

80% of this population.

Several states each have more than 1,000 incarcerated individuals who have been in prison since

childhood. Georgia, Texas, and Wisconsin are among

those with the highest number of people incarcerated

for crimes committed as children. These states are

especially relevant as they exclude all 17-year-olds from

juvenile court jurisdiction and refer all such matters

to criminal court. They also are in federal jurisdictions

that do not examine the specific intent of the speaker

28 Charles Puzzanchera, Melissa Sickmund, Hunter Hurst,

Youth Younger than 18 Prosecuted in Criminal Court: National

Estimate, 2019 Cases, National Center for Juvenile Justice (2019),

available at https://www.ojp.gov/sites/g/files/xyckuh176/files/media/

document/youth-prosecuted-criminal-court-2019-cases.pdf.

29 A Crime Against Humanity: The Mass Incarceration of Children

in the United States, Human Rights for Kids, forthcoming

publication (2023).

19

when determining whether a statement is a true threat

outside the protection of the First Amendment.30

These three states are not alone, however, in

how their transfer statutes pose a significant risk to

children prosecuted pursuant to the true threat exception. In Florida, for example, prosecutors may directly

charge any 16- or 17-year-old in criminal court if the

charge involves a felony offense.31 Under federal law,

a child fifteen years of age or older who commits a

felony constituting a crime of violence may be prosecuted as an adult.32 A crime of violence is defined as

“an offense that has as an element the . . . threatened

use of physical force against the person or property

of another . . .”33 There are numerous threat-related

offenses with which a child therefore could be charged

under federal law. See, e.g., 18 U.S.C. § 115 (influencing, impeding, or retaliating against a federal official

by threatening or injuring a family member); id.

§ 871(a) (threatening the President); id. § 873 (blackmail); id. § 875(c) (threatening to kidnap or injure any

person); id. § 876(c) (mailing threatening communications); id. § 878 (threats and extortion against foreign

officials, official guests, or internationally protected

persons); id. § 879 (threats against former Presidents

and certain other persons); id. § 1503(a) (threats

against a jury member); id. § 1951(a) (interference with

commerce). And if a child is 16 or 17 and has previously been convicted of a felony drug or violent offense,

30 Petitioner’s Writ of Certiorari, Counterman v. Colorado, at 3.

31 Fla. Stat. § 985.557(1)(b).

32 18 U.S.C. § 5032.

33 18 U.S.C. § 16.

20

he or she is automatically prosecuted as an adult,

regardless of circumstances.34

2. Children’s Cognitive Immaturity and

Speaking Style Should Be Considered

in Establishing the Appropriate Mens

Rea Requirement of the True Threat

Doctrine.

This Court should consider the attributes of youth

—in particular, a child’s limited cognitive abilities—

when establishing the mens rea standard for true

threats. Children’s obsessive use of social media underscores this need: often using rhetoric that obtains the

most “likes” and online praise. At bottom, they speak

and think differently, and frequently act in a way that

might alarm adults while being completely harmless

from their perspective.35

Developed over the last few decades, this Court’s

child sentencing jurisprudence is instructive in this

regard, providing guidance for distinguishing protected

(albeit exaggerated, unthinking, or crude) speech from

a true threat. Recognizing their cognitive immaturity,

this Court consistently holds that children are different

from adults and should not be subject to the state’s

harshest penalties. See, e.g., Miller v. Alabama, 567

U.S. 460, 471 (2012).

34 Id.

35 Because their brains are still developing, adolescents have

limited ability to consider the consequences of their actions and

are more susceptible to outside influences and pressures. See

Kristin N. Henning, Criminalizing Normal Adolescent Behavior

in Communities of Color: The Role of Prosecutors in Juvenile

Justice Reform, 98 CORNELL L. REV. 383, 385 (2013).

21

Beginning with Eddings v. Oklahoma, 455 U.S.

104, 115 (1982), this Court has recognized that juveniles

do not process decisions like adults, and that “[e]ven

the normal 16-year-old customarily lacks the maturity

of an adult.” In Thompson v. Oklahoma, the Court

further noted that juveniles are more motivated by

emotions and outside pressures and less capable of

considering the consequences of their actions than

adults. 487 U.S. 815, 835 (1988); see also Johnson v.

Texas, 509 U.S. 350, 367 (1993) (juveniles lack maturity

and a sense of responsibility that “often results in

impetuous and ill-considered actions and decisions”);

Roper v. Simmons, 543 U.S. 551, 569 (2005) (juveniles

are categorically less culpable than adults because they

have “a lack of maturity and an underdeveloped sense

of responsibility” and are “more vulnerable or susceptible to negative influences and outside pressures”);

Graham v. Florida, 560 U.S. 48, 68 (2010) (“developments in psychology and brain science continue to

show differences between juvenile and adult minds”).

Even more than in sentencing proceedings, these

developmental limitations must be considered when

seeking to impose criminal liability on a child for

thoughtless, ill-considered, or hyperbolic speech transmitted online. Young people are impetuous and drawn

to risk-taking behaviors.36 They typically lack planning

skills, appreciation for long-term consequences, and

the ability to self-regulate like adults.37 Peer pressure

encourages impressionable and “eager to please” chil36 See Elizabeth Scott, Thomas Grisso, Marsha Levick & Laurence

Steinberg, Juvenile Sentencing Reform in a Constitutional

Framework, 88 TEMP. L. REV. 675, 682 (2016).

37 Id. at 683-85.

22

dren to inflate their experiences. To boost their personal status by getting “likes,” comments, or shares that

adolescent social media users crave, they endeavor to

“Wow!” their contemporaries.38 The need to obtain

“likes” is addictive, and can cause individuals, especially young teens, to say things they would not say

normally.39 Hyperbole and exaggeration are timetested ways to garner the desired attention, but not

everyone “on the other side of the screen” may discern

the true intent behind the presentations.40

Research reveals that “[m]ost threats made by

children or adolescents are not carried out.”41 The

anonymity of social media, however, enables cyber

bullying, often committed by teens who lack the cognitive maturity to understand the risk of harm their

conduct engenders.42 “Many such [purported] threats

are a child’s way of talking big or tough, or trying to

get attention. Sometimes these threats are a reaction

38 See Alyson Shontell, A Teen Was Jailed for a ‘Sarcastic’

Facebook Post Even Though the Cops Never Saw the Actual Conversation, BUS. INSIDER (Feb. 14, 2014), http://www.businessinsider.

com/justin-carters-facebook-comment-scandal-2014-2.

39 See Maureen O’Connor, Addicted to Likes: How Social Media

Feeds Our Neediness, N.Y. MAG. (Feb. 20, 2014), https://perma.

cc/HQ33-VGFY.

40 Lidsky & Norbut, supra note 4, at 1913.

41 See Threats by Children: When are they Serious?, American

Academy of Child & Adolescent Psychiatry (2019), https://www.

aacap.org/AACAP/Families_and_Youth/Facts_for_Families/

FFF-Guide/Childrens-Threats-When-Are-They-Serious-065.

aspx.

42 See Michal Buchhandler-Raphael, Overcriminalizing Speech,

36 CARDOZO L. REV. 1667, 1701-02 (2015).

23

to a perceived hurt, disappointment, or rejection.”43

But as one high school official noted while addressing

student posts facially indicating violence: “I don’t think

many young students recognize [that] when they post

something on social media, whether it’s as a joke, or

it’s out of frustration or anger, the consequences can

last their entire life.”44

Only a comprehensive test that requires both

objective harm and the subjective intent of the speaker,

determined through consideration of all the facts and

circumstances, can insulate children from overcriminalization of innocent speech in an arena where they

are some of the most active yet vulnerable participants.45 “The generation gap within certain social media

platforms—especially when combined with the distinct

communication conventions that develop within each

cohort—may lead courts and lawmakers unfamiliar

with those conventions to criminalize normal or common adolescent behavior, which has increasingly included the use of hyperbole in almost any given online

situation.”46

43 Threats by Children: When are they Serious?, supra note 41.

44 Statement of Albemarle County Public Schools’ spokesperson

approving of police action charging three teens at an Albemarle

County, Va. high school for making threats (Dec. 8, 2022),

https://www.cbs19news.com/story/45405622/minors-chargedfor-making-threats-against-schools.

45 Lidsky & Norbut, supra note 4, at 1922.

46 See Jessica Bennett, OMG! The Hyperbole of Internet-Speak,

N.Y. TIMES (Nov. 28, 2015), https://www.nytimes.com/2015/11/29/

fashion/death-by-internet-hyperbole-literally-dying-over-this

column.html; see also Lidsky & Norbut, supra note 4, at 1911-12.

24

For example, lacking familiarity with social media

platforms’ conventions, a judge might erroneously conclude that a multitude of postings using the words

“dead” and “dying” presaged the impending demise of

the posters, either through murder or suicide, when in

actuality the use of “OMG dying” is commonly used

by girls and young women “as filler for anytime anyone

says anything remotely entertaining.”47 This generational convention is the lingua franca of young people

who have grown up using the internet as their primary mode of communication and must be taken into

consideration by “outsiders,” including legal decisionmakers, seeking to understand the actual meaning

and intent of their online musings.48

3. An Objective Test Reduces the Requisite Mental State for Criminality to

Mere Negligence, a Standard That

When Applied to Children Will All

Too Frequently Result in Loss of

Their First Amendment Right of Free

Speech.

For criminal culpability to attach, this Court

has consistently subscribed to the view that “consciousness of wrongdoing,” “[w]ith few exceptions,” is

essential. Elonis, 575 U.S. at 734 (internal citations

omitted). Use of an objective test that applies either a

reasonable listener or a reasonable speaker standard49

47 Lidsky & Norbut, supra note 4, at 1912.

48 Id. at 1913.

49 See Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 622

(8th Cir. 2002) (en banc) (noting that, while some courts using

the objective test have applied a reasonable-listener standard,

others have embraced a reasonable-speaker standard).

25

contravenes this established precedent, reducing the

requisite mens rea to mere negligence and thereby

impermissibly burdening speakers’ First Amendment

rights. Jeffries, 692 F.3d at 484 (Sutton, J., dubitante).

The emotion of fear is so variable and so difficult

to predict that, standing alone, the mere fact that

speech puts someone in fear cannot and should not

be the basis for criminal liability.50 The reasonable

person standard has the potential for transforming

even negligent misunderstandings, often generated by

the architecture of the social media themselves, into

felonies.

In the context of children’s speech, this is manifestly inappropriate and unjust. Kids, as any parent will

attest, are not reasonable. They do not self-regulate.

They neither think before they act nor appreciate the

consequences of their actions. Holding them to a

standard of evaluating the effect of their words on

others is tasking them with a responsibility they are

physiologically incapable of shouldering. “That after

all is what an objective test does: It asks only whether

a reasonable listener would understand the communication as an expression of intent to injure, permitting

a conviction not because the defendant intended his

words to constitute a threat to injure another but

because he should have known others would see it

that way.” Jeffries, 692 F.3d at 484-85 (Sutton, J.,

dubitante) (emphasis added). Accordingly, as Judge

Sutton correctly noted, “The reasonable man rarely

takes the stage in criminal law.” Id. at 485. And

there is absolutely no justification for extending this

demonstrably inappropriate adult standard to children,

50 Lidsky & Norbut, supra note 4, at 1917.

26

whose cognitive immaturity the Graham, Roper, and

Miller Courts relied on to exempt them from the

“State’s harshest penalties.”

The consequences of kids’ cognitive immaturity

are further exacerbated on social media platforms that

often create a permanent record of their colloquy.

These often ill-conceived, impetuous utterings can take

on completely different meanings when encountered

at a later time or when viewed by “outsiders” unfamiliar with the “insiders” language and usage of common

internet conventions.51

This is exactly the scenario that subjected Justin

Carter, a 17-year-old Texas boy, to criminal prosecution for a Facebook post made while he was playing

an online battle game, in which he stated, among other

things: “I think I’ma SHOOT UP A KINDERGARTEN.” Taken completely out of context, Justin’s

words so alarmed a total stranger—a Canadian,

middle-aged woman—that she contacted Texas police,

who arrested and charged Justin with making a

terrorist threat.

Justin was charged without consideration of any

of the attendant circumstances, including the fact

that the participants in his battle game, generally

ranging in age from 16 to 30, routinely engaged in

“trash talk and hyperbolic exaggeration,” and that

the immediate recipient of the comment made no effort

to alert authorities. Evidence indicating that the post

was more of a rant than a threat was the use of

capital letters, which is internet code for shouting.

Justin’s immediate subsequent post saying, “LOL”

51 Lidsky & Norbut, supra note 4, at 1907, 1909-10.

27

and “J/K,” which are common internet abbreviations

for “laughing out loud” and “just kidding,” respectively,

was also ignored.

The judge set bail at $500,000. Justin spent four

months in jail, where he was physically abused and put

in solitary confinement for his own safety. He awaited

trial for five years before prosecutors finally offered

him a deal dismissing the felony charges in exchange

for a guilty plea to an unrelated misdemeanor charge.52

Justin Carter suffered this injustice because the

police, prosecutors, and judge applied the objectiveonly test, focusing solely on the effect of Justin’s literal

words on a supposed “reasonable listener,” without

any consideration of the relevant contextual evidence

that would have conclusively demonstrated he lacked

the specific intent to communicate any true threat.

Another disturbing example is that of 17-year-old

Jashon Jevon Taylor, who was charged with making

a terrorist threat when, angry that his favorite team

did not win the Super Bowl, he took to Snapchat to

express his hatred of the New England Patriots and

their fans, threatening to kill some of his classmates.53

Jashon’s youth, combined with a consideration of the

rhetoric often employed in sports rivalries where “trash

talk” between opposing teams is routine, was ignored

52 See Alyson Shontell, When A Teen’s ‘Sarcastic’ Facebook Message

Goes Terribly Wrong, BUS. INSIDER (July 8, 2013), https://www.

businessinsider.com/teen-justin-carter-faces-trial-and-jail-forfacebook-comment-2013-7. See Lidsky & Norbut, supra note 4,

at 1886-88.

53 Max Londberg, Belton High teen charged with felony after

threat on Snapchat, KANSAS CITY STAR (Feb. 8, 2017), http://

www.kansascity.com/news/local/crime/article131622874.html.

28

in determining whether his outburst was anything

more than hyperbole.54

In Doe v. Pulaski County Special School District,

306 F.3d 616 (8th Cir. 2002) (en banc), the court upheld

a seventh-grader’s suspension based on threats to a

former girlfriend who had recently broken up with

him. “Angry and frustrated” (306 F.3d at 627), JM

included the rants in a song/letter he composed at

home, but never delivered. He did let a friend read the

letter, who informed the girl, KG, about its contents.

KG asked to see the letter, but JM refused to provide

it. At KG’s urging, the boy’s friend stole the letter from

JM’s bedroom and gave it to KG. She read its contents

at school in the presence of other students, one of

whom told a security guard, who then reported the

incident to the school administrators. While the court

criticized the school board’s disciplinary action as

“unnecessarily harsh,” it refused to intrude on the

board’s autonomy to overturn the suspension.55

Tragically, in numerous other cases involving

kids, use of the objective test or reasonable person

standard—focusing solely on the effect of a speaker’s

words on a listener or the effect the speaker supposedly should have anticipated—has resulted in

arrest, criminal prosecution, and/or school expulsion.

54 See Lidsky & Norbut, supra note 4, at 1911.

55 See also Kenneth L. Karst, Threats and Meanings: How the

Facts Govern First Amendment Doctrine, 58 STAN. L. REV. 1337

(2006) (positing several hypotheticals).

29

4. Only Upon a Showing of Subjective

Intent to Transmit a Threat,

Considering the Totality of the

Circumstances, Should Children

Forfeit First Amendment Protection.

The subjective intent requirement is a rule of

construction reflecting the basic principle that “wrongdoing must be conscious to be criminal.” Elonis,

575 U.S. at 734 (quoting Morissette v. United States,

342 U.S. 246, 252 (1952)). This Court has repeatedly

confirmed that in the First Amendment context, any

restrictions on free speech must be extremely limited,

clearly delineated, and narrowly circumscribed to avoid

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

Paul, 505 U.S. 377 (1992). Accordingly, identifying the

mens rea component of the subjective test should err

on the side of potentially allowing some marginal

speech to retain its constitutional protection.

A standard requiring merely a showing of

“reckless disregard” would be too low a bar. This is

particularly the case when a child speaker’s intent is

being reviewed. Reckless behavior is the hallmark

of kids’ cognitive immaturity. A subjective intent

standard of reckless disregard as a basis for conviction would realistically provide kids with no more

First Amendment protection for their routine outbursts

than an objective intent standard that excludes any

consideration of actual speaker intent.

But adopting a specific intent standard is only the

first step. A factfinder must also step into the child’s

shoes and interpret their words through his or her

perspective. Without undertaking a serious analysis

of all the facts and circumstances to see if the requisite

mens rea exists, the standard may be nothing more

30

than the improper “objective intent” test masquerading

as a requisite “subjective intent” analysis. This

appeared to be the case in Pennsylvania v. Knox,

where the teenage defendant’s conviction for making

a terrorist threat in the form of a rap song containing

violent lyrics aimed at the police in general and two

specific officers was upheld on appeal. 190 A.3d 1146,

1153 (Pa. 2018). The Court found the requisite intent

based on its own interpretation of the lyrics, augmented

solely with a cursory consideration of four other

contextual factors. Id. at 1159-61.56

5. Application of the Specific Intent Test

Standing Alone Can Result in Unfair

Punishment for Kids Simply Being

Kids.

Kids make rash, thoughtless statements all the

time as a consequence of their lack of physiological

development in the area of the prefrontal cortex responsible for “executive function” or judgment.57 Yet,

they may fully “intend” to communicate the essence

of their statements. But just as this Court has recognized in the juvenile sentencing context, these adolescent outbursts must be recognized as symptoms of

cognitive immaturity and—no matter how vitriolic,

crude, disparaging, and even threatening they sound—

they cannot, standing alone, subject the child to criminal prosecution. This inquiry into the speaker’s intent

56 See Griffin, supra note 5, at 739-43.

57 Nat’l Institute of Mental Health, The Teen Brain: 7 Things to

Know (Revised 2023), https://www.nimh.nih.gov/health/publications

/the-teen-brain-7-things-to-know.

31

must be coupled with an objective determination of

the actual effect of the speech on a reasonable person.58

In the absence of any objective harm actually

perceived by a reasonable listener, when all contextual evidence is considered, even the most reprehensible

intent in the mind of the speaker is protected by the

First Amendment’s free speech guarantee. In other

words, while subjective intent to communicate a threat

is the requisite mens rea for speech to lose its

constitutional protection, there must also be a showing

of the requisite actus reus, or a showing of harm in

the form of fear or intimidation in a reasonable listener.

See, e.g., North Carolina v. Taylor, 866 S.E.2d 740,

755 (N.C. 2021) (requiring the state to “prove both an

objective and subjective element”). The best way to

evaluate the conduct element of the offense is through

use of the objective or reasonable person standard,

once again after considering all the relevant contextual

evidence.

Any test that fails to consider subjective intent

as well as the effect on the listener precludes a court

from taking into account children’s developmental

limitations. Under the objective test standing alone,

for example, a 12-year-old and a 32-year-old who utter

58 Conversely, a subjective-intent-only standard might effectively

eliminate appellate review of “true threat” determinations. See,

e.g., Pennsylvania v. Knox, 190 A.3d 1146 (Pa. 2018) (treating

subjective intent as a question of fact and restricting review to

whether “competent evidence” supported finding). Because a

defendant’s subjective intent is classically considered a question

of fact for a jury, appellate courts may consider their hands

tied. See Griffin, supra note 5, at 732-35. This Court should

make clear that the “constitutional facts” doctrine extends to

findings of “subjective intent” in true threat cases.

32

the same words are treated the same—their words are

analyzed solely in terms of how a reasonable person

would react. A test that includes consideration of

subjective intent, by contrast, would allow a factfinder

to assess a child’s intent according to his or her level

of cognitive development. Given the jeopardy faced

by children across the country, this Court should

ensure that children who do not have a specific intent

to threaten are not unfairly and unconstitutionally

prosecuted for reckless or negligent statements made

during youth or adolescence.59

59 If this Court adopts the objective standard, essentially one of

mere negligence, as the appropriate mens rea element under

the true threat doctrine, amicus argues that in cases involving

children’s speech, due process requires a showing of specific

intent assessed upon consideration of the totality of facts and

circumstances.

33

CONCLUSION

For the foregoing reasons, this Court should

hold that, to invoke the true threat exception to the

free speech guarantee of the First Amendment, there

must be evidence of both a fear of violence perceived

by a reasonable listener and the speaker’s specific

intent to transmit a threat, through examination of

the totality of the circumstances.

Respectfully submitted,

John H. Fleming

*Counsel of Record

EVERSHEDS SUTHERLAND (US) LLP

999 Peachtree Street, NE, Suite 2300

Atlanta, GA 30309-3996

(404) 853-8000

johnfleming@eversheds-sutherland.com

Suzanne S. La Pierre

Emily Virgin

James Dold

HUMAN RIGHTS FOR KIDS

P.O. Box 5960

Washington, DC 20016

(202) 573-7758

Timothy J. McCaffrey

EVERSHEDS SUTHERLAND (US) LLP

227 W Monroe Street, Suite 6000

Chicago, IL 60606

(312) 724-9006

34

Adam C. Pollet

Joel E. Hoffman

Daniel Morris

Zack W. Lindsey

Paige C. Spraker

Tuong-anh T. Pham

EVERSHEDS SUTHERLAND (US) LLP

700 Sixth Street, NW, Suite 700

Washington, DC 20001-3980

(202) 383-0100

Tanvi Shah

EVERSHEDS SUTHERLAND (US) LLP

12255 El Camino Real, Suite 100

San Diego, CA 92130-2071

(858) 252-6502

Counsel for Amicus Curiae

March 1, 2023