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 Writ of Certiorari to the Colorado Court of

Appeals, Division II

BRIEF OF ALLIANCE DEFENDING FREEDOM

AS AMICUS CURIAE

IN SUPPORT OF NEITHER PARTY

TYSON C. LANGHOFER

ALLIANCE DEFENDING

FREEDOM

44180 Riverside Pkwy.

Lansdowne, VA 20176

TRAVIS C. BARHAM

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals

Rd., Suite D-1100

Lawrenceville, GA 30043

JOHN J. BURSCH

Counsel of Record

ALLIANCE DEFENDING FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(616) 450–4235

jbursch@ADFlegal.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

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

BACKGROUND ......................................................... 2

I.

Maggie DeJong—Southern Illinois

University, Edwardsville. ............................. 2

II. Peter Perlot, Mark Miller, Ryan

Alexander, and Richard Seamon—

University of Idaho........................................ 4

III. Chike

Uzuegbunam—Georgia

Gwinnett College. .......................................... 6

SUMMARY OF THE ARGUMENT ........................... 9

ARGUMENT ............................................................ 11

I.

This Court should construe the “true

threats” exception very narrowly to avoid

burdening First Amendment freedoms............. 12

A. This Court should ensure that this

First Amendment exception, like the

others, is narrow and well-defined. ............ 12

B. This Court should once again ensure

that speech cannot be punished merely

due to its emotional impact......................... 14

C. This Court should once again ensure

that government officials do not have

discretion to limit speech. ........................... 16

ii

D. This Court should continue its history

of extending protection to speech some

dub worthless to ensure that we protect

the worthwhile. ........................................... 17

II. This Court should limit the “true threats”

exception to instances where the speaker

knew his remarks would communicate a

threat or intended this. ..................................... 20

A. This mens rea requirement aligns with

this Court’s precedents. .............................. 20

B. This mens rea requirement would

provide the needed breathing space for

First Amendment freedoms. ....................... 22

C. This mens rea requirement would

ensure that only wrongful conduct is

beyond First Amendment protection. ......... 23

D. This mens rea requirement would

prevent any ambiguities in this area

from chilling protected speech. ................... 24

E. This mens rea requirement aligns with

the limits on other categorical First

Amendment exceptions. .............................. 25

1. Obscenity & Child Pornography .......... 26

2. Defamation ............................................ 27

3. Speech Integral to Crime ...................... 27

4. Fraud ..................................................... 28

iii

5. Incitement ............................................. 28

6. Fighting Words ..................................... 29

CONCLUSION ......................................................... 31

iv

TABLE OF AUTHORITIES

Cases

303 Creative LLC v. Elenis,

142 S. Ct. 1106 (2022).......................................... 1

303 Creative LLC v. Elenis,

6 F.4th 1160 (10th Cir. 2021) .............................. 1

Adams v. Trustees of University of North

Carolina-Wilmington,

640 F.3d 550 (4th Cir. 2011) ............................... 1

Ashcroft v. ACLU,

542 U.S. 656 (2004)...................................... 12, 25

Bair v. Shippensburg University,

280 F. Supp. 2d 357 (M.D. Pa. 2003) .......... 11, 12

Board of Regents of University of Wisconsin

System v. Southworth,

529 U.S. 217 (2000).............................................. 1

Booher v. Board of Regents of Northern Kentucky

University,

No. 96-CV-135, 1998 WL 35867183 (E.D. Ky.

July 22, 1998) ..................................................... 11

Brandenburg v. Ohio,

395 U.S. 444 (1969)................................ 18, 28, 29

Brown v. Entertainment Merchants Association,

564 U.S. 786 (2011)................................ 12, 18, 26

Cantwell v. Connecticut,

310 U.S. 296 (1940)...................................... 15, 30

v

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942).................................. 9, 12, 13

City of Lakewood v. Plain Dealer Publishing

Company,

486 U.S. 750 (1988)............................................ 16

Cohen v. California,

403 U.S. 15 (1971)................. 12, 13, 17, 18, 29, 30

Cohen v. San Bernardino Valley College,

92 F.3d 968 (9th Cir. 1996) ............................... 11

College Republicans at San Francisco State

University v. Reed,

523 F. Supp. 2d 1005 (N.D. Cal. 2007) ....... 11, 12

Dambrot v. Central Michigan University,

55 F.3d 1177 (6th Cir. 1995) ............................. 11

Dambrot v. Central Michigan University,

839 F. Supp. 477 (E.D. Mich. 1993) ............ 11, 17

DeJohn v. Temple University,

537 F.3d 301 (3d Cir. 2008) ..................... 1, 11, 19

Doe v. Rector & Visitors of George Mason

University,

149 F. Supp. 3d 602 (E.D. Va. 2016) ................. 11

Doe v. University of Michigan,

721 F. Supp. 852 (E.D. Mich. 1989) ...... 11, 12, 25

Elonis v. United States,

575 U.S. 723 (2015).....................22, 23, 24, 26, 27

vi

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975)............................................ 13

Forsyth County v. Nationalist Movement,

505 U.S. 123 (1992)................................ 14, 15, 16

Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974)................................ 18, 22, 27

Giboney v. Empire Storage & Ice Company,

336 U.S. 490 (1949)............................................ 28

Ginsberg v. New York,

390 U.S. 629 (1968)............................................ 26

Gregory v. City of Chicago,

394 U.S. 111 (1969)............................................ 15

Hamling v. United States,

418 U.S. 87 (1974)........................................ 15, 26

Healy v. James,

408 U.S. 169 (1972)........................................ 2, 19

Hess v. Indiana,

414 U.S. 105 (1973)................................ 12, 29, 30

Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988)...............................9, 15, 22, 27

Iota Xi Chapter of Sigma Chi Fraternity v. George

Mason University,

993 F.2d 386 (4th Cir. 1993) ............................. 11

Keyishian v. Board of Regents of University of New

York,

385 U.S. 589 (1967)........................................ 8, 25

vii

Mahanoy Area School District v. B.L. ex rel. Levy,

141 S. Ct. 2038 (2021)........................................ 17

Matal v. Tam,

137 S. Ct. 1744 (2017)........................................ 15

McCauley v. University of Virgin Islands,

618 F.3d 232 (3d Cir. 2010) ................................ 11

McCauley v. University of Virgin Islands,

No. 2005-188, 2009 WL 2634368 (D.V.I. Aug.

21, 2009) ............................................................. 11

Meriwether v. Hartop,

992 F.3d 492 (6th Cir. 2021) ......................... 1, 11

Miller v. California,

413 U.S. 15 (1973).............................................. 26

Minnesota Voters Alliance v. Mansky,

138 S. Ct. 1876 (2018).................................. 14, 16

Mishkin v. New York,

383 U.S. 502 (1966)...................................... 24, 26

N.L.R.B. v. Gissel Packing Company,

395 U.S. 575 (1969)............................................ 20

NAACP v. Button,

371 U.S. 415 (1963)................................ 13, 22, 23

National Institute of Family & Life Advocates v.

Becerra,

138 S. Ct. 2361 (2018).......................................... 1

New York Times Company v. Sullivan,

376 U.S. 254 (1964)............................................ 27

viii

New York v. Ferber,

458 U.S. 747 (1982)............................................ 26

Obergefell v. Hodges,

576 U.S. 644 (2015).............................................. 4

OSU Student Alliance v. Ray,

699 F.3d 1053 (9th Cir. 2012) ............................. 1

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

505 U.S. 377 (1992)........................................ 9, 13

Reed v. Town of Gilbert,

576 U.S. 155 (2015).............................................. 1

Roberts v. Haragan,

346 F. Supp. 2d 853 (N.D. Tex. 2004) ......... 11, 12

Rogers v. United States,

422 U.S. 35 (1975).................................. 20, 22, 24

Rosenberger v. Rector & Visitors of University of

Virginia,

515 U.S. 819 (1995).............................................. 1

Roth v. United States,

354 U.S. 476 (1957).............................9, 18, 22, 26

Shuttlesworth v. City of Birmingham,

394 U.S. 147 (1969) ............................................ 16

Snyder v. Phelps,

562 U.S. 443 (2011)...................................... 15, 18

Speech First, Inc. v. Fenves,

979 F.3d 319 (5th Cir. 2020) ............................. 11

ix

Speech First, Inc. v. Schlissel,

939 F.3d 756 (6th Cir. 2019) ............................. 11

Sweezy v. New Hampshire,

354 U.S. 234 (1957).............................................. 2

Texas v. Johnson,

491 U.S. 397 (1989)................................ 14, 18, 30

Thompson v. Hebdon,

140 S. Ct. 348 (2019)............................................ 1

United States v. Alvarez,

567 U.S. 709 (2012).......................9, 15, 18, 22, 28

United States v. Cassel,

408 F.3d 622 (9th Cir. 2005) ....................... 21, 22

United States v. Heineman,

767 F.3d 970 (10th Cir. 2014) ..................... 21, 22

United States v. Stevens,

559 U.S. 460 (2010).......................9, 17, 18, 19, 28

UWM Post, Inc. v. Board of Regents of University

of Wisconsin System,

774 F. Supp. 1163 (E.D. Wis. 1991) .................. 11

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (2021).................................... 1, 6, 7

Virginia v. Black,

538 U.S. 343 (2003)...................................... 19, 21

Ward v. Polite,

667 F.3d 727 (6th Cir. 2012) ............................. 11

x

Watts v. United States,

394 U.S. 705 (1969)................................ 13, 18, 20

Other Authorities

Aaron Sibarium, Hundreds of Yale Law Student

Disrupt Bipartisan Free Speech Event, WASH.

FREE BEACON (Mar. 16, 2022),

https://bit.ly/3xRf89n ........................................... 8

Catherine Rampel, A Chilling Study Shows How

Hostile College Students Are Towards Free

Speech, WASH. POST (Sept. 18, 2017),

https://wapo.st/3tp1IQd ....................................... 8

David Lat, Is Free Speech in American Law

Schools a Lost Cause?, ORIGINAL JURIS. (Mar.

17, 2022), https://bit.ly/3m2FhiQ ........................ 8

Kristen Waggoner & Monica Miller, The Anti-Free

Speech Sickness Plaguing America Has

Infected Our Future Lawyers, DAILY MAIL

(Mar. 23, 2022), https://bit.ly/3ZeQKtL .............. 8

Lisa Feldman Barrett, When Speech Is Violence,

N.Y. TIMES (July 14, 2017),

https://nyti.ms/3Zjlbzk ......................................... 7

Rules

FED. R. CIV. P. 9(b).................................................... 28

1

INTEREST OF AMICUS CURIAE 1

Alliance Defending Freedom (ADF) is a not-forprofit, public-interest legal organization that protects

speech, religious liberty, and the right to life. ADF

regularly defends students, adults, and organizations

in cases before this Court involving the right to free

speech. E.g., Uzuegbunam v. Preczewski, 141 S. Ct.

792 (2021); Thompson v. Hebdon, 140 S. Ct. 348

(2019) (per curiam); Nat’l Inst. of Fam. & Life Advocs.

v. Becerra, 138 S. Ct. 2361 (2018); Reed v. Town of

Gilbert, 576 U.S. 155 (2015). Since its founding in

1994, ADF has played an indirect role in still other

free speech cases involving university students. E.g.,

Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819 (1995); Bd. of Regents of Univ. of Wis. Sys. v.

Southworth, 529 U.S. 217 (2000). It is counsel in a free

speech case pending before the Court this Term: 303

Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir. 2021),

cert granted 142 S. Ct. 1106 (2022).

ADF represents students, student organizations,

and faculty who challenge threats to their free speech

rights. E.g., DeJohn v. Temple Univ., 537 F.3d 301 (3d

Cir. 2008); Adams v. Trs. of Univ. of N.C.-Wilmington,

640 F.3d 550 (4th Cir. 2011); OSU Student All. v. Ray,

699 F.3d 1053 (9th Cir. 2012); Meriwether v. Hartop,

992 F.3d 492 (6th Cir. 2021). So, ADF has a strong

interest in ensuring that the Free Speech Clause’s

protections remain robust and that any exceptions remain narrow and well-defined.

No counsel for a party authored this brief in whole or in

part, and no person other than amicus and its counsel made any

monetary contribution intended to fund the preparation or submission of this brief.

1

2

BACKGROUND

ADF and its clients know firsthand the perils of

creating exceptions to the First Amendment’s free

speech protections. Religious speech often provokes

debate and inflames passions. But that is precisely

why the First Amendment protects it. Such speech expresses the deeply held beliefs of the speaker and contributes to what universities are supposed to be—the

“marketplace of ideas.” Healy v. James, 408 U.S. 169,

180 (1972). As the training ground for our citizens and

future leaders, public universities should celebrate

this diversity of perspectives for the betterment of all.

E.g., Sweezy v. New Hampshire, 354 U.S. 234, 250

(1957) (“The essentiality of freedom in the community

of American universities is almost self-evident.”). But

today, universities are quick to clamp down on speech

simply because it might cause subjective offense and

to evade accountability for their censorship by invoking one of the First Amendment’s narrow exceptions.

I.

Maggie DeJong—Southern Illinois University, Edwardsville.

A year ago, Maggie DeJong was counting down

the weeks to graduating, along with her 10 classmates, with her master’s degree in art therapy. See

Compl., DeJong v. Pembrook, No. 3:22-cv-01124 (S.D.

Ill. May 31, 2022), ECF No. 1. Thus, she was shocked

when she suddenly received not one, not two, but

three no-contact orders from her university. These orders banned her from having “any contact” or “indirect communication” with three students, two from

her graduating class and one from another. If she violated these orders, officials threatened her with “disciplinary consequences,” and they copied a university

police officer on each one to drive that threat home.

3

Before issuing these orders, no University official

had even informed Maggie that she was under investigation. Nor did anyone give her a chance to tell her

side of the story. No one even told Maggie what she

had supposedly done to merit this punishment.

One month later, after Maggie was forced to retain legal counsel, the picture became clearer. Three

students complained because Maggie expressed her

Christian and conservative views on current events.

These three students found her views offensive, as

was their right, but they also claimed that Maggie’s

speech itself had threatened them.

On social media, Maggie frequently expressed her

religious beliefs. To one student, this content “directly

attacks and belittles my own religious beliefs.” This

student also claimed Maggie told her “I will not be

saved when the rapture comes” and “claims to have

‘objective truth.’” Of course, the student failed to mention that this conversation occurred over a year before

and that the two were joking with each other at the

time. Instead, the student told officials that she felt

“unable to speak about my own belief system” in Maggie’s presence, and that Maggie’s mere words represented discrimination, harassment, or retaliation.

To another student, Maggie explained why she

“refused to succumb to critical race theory”—because

she considered it “divisive and racist in its essence.”

In her report, this student also omitted how the conversation occurred ten months earlier, and how Maggie immediately followed up by saying “how much I

value you” and how she saw in this student “a beautiful heart,” “a compassion for children,” and “a strong

warrior.” All the student told officials was that she

“perceived” this spoken message “as threatening.”

4

Based on these incomplete complaints about

speech, University officials issued the three no-contact orders, and they accused Maggie of committing

“oppressive acts” and “misconduct.” This led to her being accused of “creating a toxic and harmful learning

environment” and of making “threats . . . against

members of our community.” All this because of disagreement and subjective offense—cloaked in the language of discrimination, harassment, and threats.

II. Peter Perlot, Mark Miller, Ryan Alexander,

and Richard Seamon—University of Idaho.

Peter Perlot, Mark Miller, Ryan Alexander, and

Richard Seamon—three law students and a law professor—can feel Maggie’s pain. They, too, received nocontact orders without warning, jeopardizing their careers. See Am. V. Compl., Perlot v. Green, No. 3:22-cv00183-DCN (D. Idaho May 17, 2022), ECF No. 17.

In response to an anti-LGBT slur from an unknown individual, the University held a “moment of

community.” Peter, Mark, and Professor Seamon—all

committed Christians involved with Christian Legal

Society—attended this event to denounce the slur and

marginalization of any members of the community.

They and other Christian Legal Society members

prayed together at the event. While they did so, a student, Ms. Doe, accosted them about why Christian Legal Society believes that marriage is between one man

and one woman. Mark and Professor Seamon explained how this is what the Bible teaches. After all,

it is what Christians have believed for millennia and

what this Court describes as “decent and honorable

beliefs” held “in good faith by sincere and reasonable

people.” Obergefell v. Hodges, 576 U.S. 644, 657, 672

(2015). The conversation ended with Ms. Doe and

5

Mark civilly disagreeing with each other. Later, Peter

left a note at her desk, inviting her to Christian Legal

Society meetings if she wanted to discuss the issue or

the group in more detail.

Three days later, Ryan and Peter attended a

meeting with an American Bar Association accreditation panel. Ms. Doe and others complained about

Christian Legal Society’s allegedly bigoted religious

views. Ryan offered a different perspective, highlighting how Ms. Doe had approached the group. He also

expressed concern about religious freedom on campus, noting that Christian Legal Society’s recognition

had recently been delayed because of objections to its

beliefs about marriage.

Three days after the panel, Peter, Mark, and

Ryan all received no-contact orders, prohibiting them

from contacting Ms. Doe in any way on or off campus,

ordering them to sit on the opposite side of the classroom if she were present, and threatening further discipline or expulsion if they violated this order.

Meanwhile, Professor Seamon emailed Ms. Doe,

offering to meet with her if she wanted to discuss everything further and making it clear that there was no

problem if she didn’t. Ms. Doe thanked him for “reaching out” and expressed a desire to meet with him.

Days later, she changed her tune and copied the dean

and associate dean on an email accusing Professor

Seamon of “caus[ing] me to fear for my life at the

[U]niversity of Idaho.” She continued: “I fear you. I

fear CLS. My life, my grades, my law school career are

not safe with a professor that is actively working towards taking away my human rights.” What led to

this? She explained: “The group you are the admin for,

subjected me and others to violent verbal abuse, in

6

which you took the lead on and agreed with.” And she

threatened to seek “a restraining order from the police” if he contacted her again.

The associate dean reviewed Professor Seamon’s

emails with Ms. Doe and declared them all innocent.

No matter. Within weeks—and after Peter, Mark, and

Ryan filed suit—Professor Seamon received a no-contact order. Like Peter, Mark, and Ryan, he was barred

from contacting Ms. Doe in any way—even though she

was in his class—beyond what is “required for classroom assignments, discussion, and attendance”—

terms the University never defined.

In short, law school officials, who should know the

First Amendment’s protections for religious speech,

used one student’s ideological disagreement and subjective offense as an excuse to slap four people with

no-contact orders, again because she cloaked her emotional offense as “threats” to her life and safety.

III. Chike Uzuegbunam—Georgia Gwinnett College.

In July 2016, Chike tried to share his religious beliefs with his fellow students in an outdoor plaza near

the library “where students often gather.” Uzuegbunam, 141 S. Ct. at 796. But College officials quickly

stopped him, explaining he “could speak about his religion or distribute materials only in two” speech

zones, “which together make up just 0.0015 percent of

campus.” Id. at 796–97.

Chike reserved a speech zone, and on the appointed day, he began sharing how Jesus Christ died

on the cross and rose from the dead to provide salvation and eternal life to all. After about 20 minutes, “a

campus police officer again told him to stop, this time

7

saying that people had complained about his speech.”

Id. at 797. According to the officer, Chike’s speech violated College policy “because it had led to complaints.” Ibid. This is because the College’s speech

code prohibited students from saying “anything that

‘disturbs the peace and/or comfort of person(s).’” Ibid.

So officers threatened Chike with punishment if he

continued speaking in the speech zone.

To defend this unconstitutional policy, the College

tried to hide behind “fighting words.” It claimed Chike

“used contentious religious language that, when directed to a crowd, has a tendency to incite hostility.”

Pet.App.155a, Uzuegbunam v. Preczewski, No, 19-968

(U.S. Jan. 31, 2020). Thus, to these officials—and to

the Office of the Attorney General of Georgia—

Chike’s presentation of the Christian Gospel “arguably rose to the level of ‘fighting words.’” Ibid.; Uzuegbunam, 141 S. Ct. at 797. Again, an institution of

higher education tried to censor speech by shoehorning it into one of the First Amendment’s exceptions.

* * *

As this Court defines the First Amendment’s

“true threats” exception, it should consider what

these students and professors have experienced. More

and more, the idea that “speech is violence” is gaining

traction. As a professor explained, “If words cause

stress, and if prolonged stress can cause physical

harm, then it seems that speech . . . can be a form

of violence.”2 Too many students internalize this, concluding violence is a proper response to speech they

dislike. Studies reveal that 51% think shouting down

Lisa Feldman Barrett, When Speech Is Violence, N.Y. TIMES

(July 14, 2017), https://nyti.ms/3Zjlbzk.

2

8

a speaker is appropriate, and almost 20% think violence is.3 Chike’s attorney experienced this when over

100 students at Yale Law School tried to shout her

down—at an event designed to show how the right

and left worked together to protect civil rights.4

Too often, universities abandon their role of training students to have the resilience and thick skin necessary to engage in the unfettered exchange of ideas

that is the hallmark of a free society. Instead, they

foster a culture that incentivizes students to view

themselves as victims and ideological views they dislike as threats—all in an effort to claim the moral

high ground while censoring protected speech and

then punishing the speaker. This Court should not

give these universities and their administrators more

tools to chill speech and cast the prohibited “pall of

orthodoxy” on campus. Keyishian v. Bd. of Regents of

Univ. of N.Y., 385 U.S. 589, 603 (1967).

Catherine Rampel, A Chilling Study Shows How Hostile

College Students Are Towards Free Speech, WASH. POST (Sept.

18, 2017), https://wapo.st/3tp1IQd.

4

Aaron Sibarium, Hundreds of Yale Law Student Disrupt Bipartisan Free Speech Event, WASH. FREE BEACON (Mar. 16,

2022), https://bit.ly/3xRf89n; David Lat, Is Free Speech in American Law Schools a Lost Cause?, ORIGINAL JURIS. (Mar. 17,

2022), https://bit.ly/3m2FhiQ; Kristen Waggoner & Monica Miller, The Anti-Free Speech Sickness Plaguing America Has Infected Our Future Lawyers, DAILY MAIL (Mar. 23, 2022),

https://bit.ly/3ZeQKtL.

3

9

SUMMARY OF THE ARGUMENT

“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow

of ideas and opinions on matters of public interest and

concern.” Hustler Mag., Inc. v. Falwell, 485 U.S. 46,

50 (1988). That is why its protections encompass “[a]ll

ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas,

even ideas hateful to the prevailing climate of opinion—have the full protection of [its] guarantees.” Roth

v. United States, 354 U.S. 476, 484 (1957).

To be sure, the First Amendment allows some

content-based restrictions in a few areas. United

States v. Alvarez, 567 U.S. 709, 717 (2012) (listing the

“historic and traditional” categorical exceptions “long

familiar to the bar”); R.A.V. v. City of St. Paul, 505

U.S. 377, 384–91 (1992) (limiting restrictions even in

these categories). But this Court has consistently limited the scope of these exceptions so that they are

“well-defined and narrowly limited classes of speech.”

Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72

(1942). The reason for this is “to allow more speech,

not less.” Alvarez, 567 U.S. at 720. This Court should

define “true threats” with these principles in mind.

As Maggie, Peter, Mark, Ryan, Professor Seamon,

and Chike attest, religious students often face persecution because of their speech. This is contrary to the

First Amendment, which “reflects a judgment by the

American people that the benefits of its restrictions

on the Government outweigh the costs” and which

“forecloses any attempt to revise that judgment

simply on the basis that some speech is not worth it.”

United States v. Stevens, 559 U.S. 460, 470 (2010).

But it still happens far too often.

10

Accordingly, this Court should make clear that

government officials—including those in public

schools and universities—cannot regulate speech

based on how listeners feel. This is particularly critical in a polarized age when too many seek to vilify

those with whom they disagree and to punish them

for holding views they dislike. Nowhere is the need for

this clarity more needed than on our campuses, which

are all too often closer to an ideological echo chamber

than the marketplace of ideas, places where those

who simply differ from the prevailing orthodoxy can

suddenly find themselves receiving no-contact orders.

Before the government can criminalize pure

speech as a threat, it should have to prove that the

speaker either knew his speech would be perceived as

a threat or intended this result. This is the only way

to prevent government officials from using an accusation of threats as a tool of censorship.

After all, the lower court here considered many

factors in assessing the speech at issue—the statements, the broader exchange, the medium, the manner, the speaker’s relationship with the reader, and

the reader’s emotional reaction. Pet.App.14a–18a.

The only factor that did not matter was the speaker’s

intent or knowledge. Pet.App.12a. These are basically

the same factors officials considered when slapping

Maggie, Peter, Mark, Ryan, and Professor Seamon

with no-contact orders, and they are the factors officials cited to argue that Chike uttered fighting words.

Especially on campus, it is not difficult to imagine

that administrators would assume that reasonable

people hold progressive views and reasonably perceive any other perspectives as hostile attacks on human rights and individual dignity. Thus, the

speaker’s intent matters a great deal.

11

ARGUMENT

Since at least the 1980s, universities have used

various tools to curtail free speech. Some use speech

codes—vague policies that prohibit speech that officials deem “uncivil,” “insensitive,” or “discriminatory.”5 Others use “bias response teams” to investigate speech that sparked complaints and officials

deemed problematic.6 Some seek to compel students

or faculty to say things they do not believe.7

When forced to defend these unconstitutional policies, university officials frequently invoke one of the

First Amendment’s narrow exceptions, often fighting

words (as with Chike),8 sometimes threats (as with

Maggie, Peter, Mark, Ryan, and Professor Seamon),9

E.g., McCauley v. Univ. of V.I., 618 F.3d 232 (3d Cir. 2010);

DeJohn, 537 F.3d 301; Cohen v. San Bernardino Valley Coll., 92

F.3d 968 (9th Cir. 1996); Dambrot v. Cent. Mich. Univ., 55 F.3d

1177 (6th Cir. 1995); Iota Xi Chapter of Sigma Chi Fraternity v.

George Mason Univ., 993 F.2d 386 (4th Cir. 1993); Coll. Republicans at S.F. State Univ. v. Reed, 523 F. Supp. 2d 1005 (N.D.

Cal. 2007); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex.

2004); Bair v. Shippensburg Univ., 280 F. Supp. 2d 357 (M.D.

Pa. 2003); Booher v. Bd. of Regents of N. Ky. Univ., No. 96-CV135, 1998 WL 35867183 (E.D. Ky. July 22, 1998); Dambrot v.

Cent. Mich. Univ., 839 F. Supp. 477 (E.D. Mich. 1993); UWM

Post, Inc. v. Bd. of Regents of Univ. of Wis. Sys., 774 F. Supp.

1163 (E.D. Wis. 1991); Doe v. Univ. of Mich., 721 F. Supp. 852

(E.D. Mich. 1989).

6

E.g., Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir.

2019); Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir. 2020).

7

E.g., Meriwether, 992 F.3d 492; Ward v. Polite, 667 F.3d 727

(6th Cir. 2012).

8

E.g., Dambrot, 55 F.3d at 1184–85; DeJohn, 537 F.3d at 320;

UWM Post, Inc., 774 F. Supp. at 1169–73; McCauley v. Univ. of

V.I., No. 2005-188, 2009 WL 2634368, *16 (D.V.I. Aug. 21, 2009),

aff’d, 618 F.3d 232 (2010).

9

E.g., Doe v. Rector & Visitors of George Mason Univ., 149 F.

Supp. 3d 602, 626–30 (E.D. Va. 2016).

5

12

and sometimes both.10 This Court should not give

these officials more tools to silence the unfettered exchange of ideas on our nation’s campuses by subjecting students to long, intrusive investigations simply

because someone does not like what they happen to

say. The only way to prevent this is to interpret true

threats as requiring some showing that the speaker

either knew his words would communicate a threat or

intended to communicate one.

I.

This Court should construe the “true

threats” exception very narrowly to avoid

burdening First Amendment freedoms.

A. This Court should ensure that this

First Amendment exception, like the

others, is narrow and well-defined.

For over eight decades, this Court has recognized

that the First Amendment’s categorical exceptions extend only to “certain well-defined and narrowly limited classes of speech.” Chaplinsky, 315 U.S. at 571;

Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011)

(same). This is because “[c]ontent-based prohibitions,”

especially those “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). Outside these

narrow exceptions, the government cannot “punish

the use of words or language.” Hess v. Indiana, 414

U.S. 105, 107 (1973) (per curiam) (cleaned up); accord

Cohen v. California, 403 U.S. 15, 24 (1971) (noting

E.g., Doe, 721 F. Supp. at 862–67; Bair, 280 F. Supp. 2d at

370–72; Roberts, 346 F. Supp. 2d at 872; Coll. Republicans, 523

F. Supp. 2d at 1012–25.

10

13

government “has a justifiable interest in regulating

speech” only in these “established exceptions”).

Especially since statutes like the one at issue here

criminalize “a form of pure speech,” this Court has

long required that they “be interpreted with the commands of the First Amendment clearly in mind,”

meaning “[w]hat is a threat must be distinguished

from what is constitutionally protected speech.” Watts

v. United States, 394 U.S. 705, 707 (1969) (per curiam). The First Amendment allows the government

to regulate speech “only with narrow specificity,” not

“[b]road prophylactic rules.” NAACP v. Button, 371

U.S. 415, 433, 438 (1963); Erznoznik v. City of Jacksonville, 422 U.S. 205, 217–18 (1975) (noting need for

“precision of drafting and clarity of purpose” when

“First Amendment freedoms are at stake”).

Indeed, over time, this Court has narrowed further the scope of these narrow, well-defined exceptions. E.g., R.A.V., 505 U.S. at 383 (“Our decisions

since the 1960’s have narrowed the scope of the traditional categorical exceptions for defamation and for

obscenity[.]” (citations omitted)). It once described

fighting words as “the insulting or ‘fighting’ words—

those which by their very utterance inflict injury or

tend to incite an immediate breach of the peace.”

Chaplinsky, 315 U.S. at 572. Later, it narrowed this

to include only speech that is (1) “directed to the person of the hearer,” and (2) “inherently likely to provoke violent reaction.” Cohen, 403 U.S. at 20. Still

later, it ruled that government cannot regulate this

speech based on hostility to the speaker’s message.

R.A.V., 505 U.S. at 384–88.

The true threats exception can be narrow and

well-defined only if it requires some showing that the

14

speaker knew he was communicating a threat or intended to do so. Criminalizing speech based on a “reasonable person” standard means speech protections

will fluctuate based on things like “the background

knowledge and media consumption of the particular

[factfinder].” Minn. Voters All. v. Mansky, 138 S. Ct.

1876, 1890 (2018). Whatever confidence one may

place in jurors’ common sense and the legal system’s

protections disappears in other contexts. For if true

threats in criminal law depend only on the “reasonable person,” then universities will restrict speech using similar standards but without safeguards.

As Chike knows, if someone complains, university

officials think it is reasonable to silence speech—even

in a “free speech zone”—claiming it “disturbs . . .

peace and/or comfort.” As Peter, Mark, Ryan, and Professor Seamon know, all it takes is for one student to

claim civil, respectful speech “threatens” her, and university officials think it is reasonable to impose nocontact orders. The more complaints they receive, the

more ammunition they think they have to say that a

reasonable person would view this speech as a threat,

as Maggie can attest. “True threats” should not become a “heckler’s veto” by another name.

B. This Court should once again ensure

that speech cannot be punished

merely due to its emotional impact.

The First Amendment’s “bedrock principle” is

that “government may not prohibit the expression of

an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S.

397, 414 (1989). After all, “[l]isteners’ reaction to

speech is not a content-neutral basis for regulation.”

Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123,

15

134 (1992). This principle applies even when speakers

have “inflict[ed] great pain” on the grieving families

of our nation’s fallen servicemen, Snyder v. Phelps,

562 U.S. 443, 460–61 (2011); lied about earning our

highest military decoration, Alvarez, 567 U.S. at 726

(invalidating statute “even if true holders of the

Medal [of Honor] might experience anger and frustration”); or used racial epithets, Matal v. Tam, 137 S.

Ct. 1744, 1763 (2017).

This principle applies to the First Amendment’s

exceptions. For obscenity, courts apply community

standards to prevent jurors from relying on their “personal opinion” or on the “effect on a particularly sensitive or insensitive person or group.” Hamling v.

United States, 418 U.S. 87, 107 (1974). When trying

to prevent incitement, the government cannot convict

someone “because the form of the protest displeased

some of the onlookers.” Gregory v. City of Chi., 394

U.S. 111, 119 (1969) (Black, J., concurring). When religious speech that “naturally would offend” listeners

did “highly offend[]” them and tempted some “to

throw [the speaker] off the street,” their reaction still

did not justify restricting the speech. Cantwell v. Connecticut, 310 U.S. 296, 309 (1940).

In defining true threats, this Court should not

open the door to restricting speech based on its effect

on the recipient. E.g., Hustler, 485 U.S. at 55 (noting

“our longstanding refusal to allow damages to be

awarded because the speech in question may have an

adverse emotional impact on the audience”). Otherwise, university officials, who already view speech as

violence, would weaponize this against students who

hold minority or disfavored views on campus—students like Maggie, Peter, Mark, Ryan, and Chike.

16

C. This Court should once again ensure

that government officials do not have

discretion to limit speech.

This Court “consistently condemn[s]” laws that

“vest in an administrative official discretion” to restrict

speech. Shuttlesworth v. City of Birmingham, 394 U.S.

147, 153 (1969). With vague criteria, officials “may decide who may speak and who may not based upon the

content of the speech or viewpoint of the speaker.” City

of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,

763–64 (1988). Speech restrictions must contain “narrow, objective, and definite standards to guide” officials, Shuttlesworth, 394 U.S. at 150–51, and must

not involve the “appraisal of facts, the exercise of

judgment, and the formation of an opinion.” Forsyth

Cnty., 505 U.S. at 131 (cleaned up). The existence of

this discretion chills speech. Id. at 133 n.10.

Without a showing of the speaker’s knowledge or

intent, there is no way to confine discretion in threat

cases. What the reasonable person would think after

considering all the facts and circumstances (except

the speaker’s intent) is very indeterminate. And it “is

‘self-evident’ that an indeterminate prohibition carries with it ‘the opportunity for abuse, especially

where it has received a virtually open-ended interpretation.’” Mansky, 138 S. Ct. at 1891 (cleaned up).

Nowhere is this potential for abuse more real than

on university campuses, where there is a prevailing

culture of hostility to free speech (e.g., “speech is violence”), even in the Ivy League. E.g., supra note 4.

This atmosphere gives officials all the cover they need

to claim that the “reasonable student” would view

speech on a host of social, political, and cultural issues

as a threat. After all, simply answering a student’s

17

question about what Christians believe led to accusations of threats on her life and “violent verbal abuse”

for Peter, Mark, Ryan, and Professor Seamon. Discussing the plan of salvation led to accusations of

threats and fighting words for Maggie and Chike.

Given today’s tendency to label one’s ideological opponents as evil or on the “wrong side of history,” this potential for abuse is great.

We simply cannot assume university officials will

respect free speech. This Court should not adopt an

objective, “reasonable person” standard for true

threats as this would entrust students’ free speech

rights “to the tender mercies of [a] discriminatory harassment/affirmative action enforcer” or the diversity,

equity, and inclusion office. Dambrot, 839 F. Supp. at

482 n.7; accord Stevens, 559 U.S. at 480 (“[T]he First

Amendment protects against the Government; it does

not leave us at the mercy of noblesse oblige.”).

D. This Court should continue its history

of extending protection to speech

some dub worthless to ensure that we

protect the worthwhile.

At times, “[i]t might be tempting to dismiss” unsympathetic speech “as unworthy of the robust First

Amendment protections.” Mahanoy Area Sch. Dist. v.

B.L. ex rel. Levy, 141 S. Ct. 2038, 2048 (2021). Indeed,

Colorado succumbed to that temptation here, downplaying the threat that the objective standard it advocates poses for a wide range of speakers, including

university students and faculty. But this Court has

long recognized that “it is necessary to protect the superfluous in order to preserve the necessary.” Ibid. It

has applied this principle in a host of cases involving

unsympathetic speech, including profanity, Cohen,

18

403 U.S. at 24–25; flag-burning, Johnson, 491 U.S. at

414, 416; lying about receiving the Medal of Honor,

Alvarez, 567 U.S. at 723; animal crush videos, Stevens, 559 U.S. at 470; violent video games, Brown, 564

U.S. at 791–92; and attacks on fallen servicemen,

Snyder, 562 U.S. at 458.

This principle applies to the First Amendment’s

exceptions. When discussing obscenity, this Court observed that “[a]ll ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideals hateful to the prevailing

climate of opinion—have the full protection of the

[First Amendment’s] guaranties.” Roth, 354 U.S. at

484. So it limited the scope of this exception accordingly. Id. at 487–88.

When discussing defamation, this Court observed

that false factual statements have “no constitutional

value,” but ruled that the “First Amendment requires

that we protect some falsehood in order to protect

speech that matters.” Gertz v. Robert Welch, Inc., 418

U.S. 323, 340–41 (1974). Thus, it limits defamation

claims, even for private figures. Id. at 347–50.

Similarly, this Court distinguished between unprotected incitement and the protected “mere abstract teaching . . . of the moral propriety or even

moral necessity for a resort to force and violence.”

Brandenburg v. Ohio, 395 U.S. 444, 448 (1969) (per

curiam) (cleaned up).

True threats are no different. The First Amendment protects even the “vituperative, abusive, and inexact,” especially without any evidence the speaker

meant to communicate a serious threat. Watts, 394

U.S. at 708. Cross-burning, given its abominable history, ranks high in the loathsome speech category.

19

Virginia v. Black, 538 U.S. 343, 352–57 (2003). But

this Court parsed that expression with care, noting

different possible messages. Id. at 357, 365–66 (message can be “political” or “meant to intimidate”).

The First Amendment’s “hallmark . . . is to allow ‘free trade in ideas’—even ideas that the overwhelming majority of people might find distasteful or

discomforting.” Id. at 358 (citation omitted). If this

“free trade” should happen anywhere, it is at our universities. Healy, 408 U.S. at 180; DeJohn, 537 F.3d at

314 (“[F]ree speech is . . . the lifeblood of academic

freedom.”). But in these environs, sharing your religious beliefs can get you accused of engaging in

“fighting words”—and by the state attorney general’s

office no less—or of making threats. There, if you answer a question and offer to discuss it further, you can

be punished for causing the listener to “fear for my

life.” At institutions of higher education (including a

state’s flagship law school), officials believed these

claims were reasonable enough to justify no-contact

orders. This Court should not empower these officials

to evade accountability for their censorship by adopting a “reasonable person” standard for true threats

that they will abuse because they think some views

are not worth protecting. But see Stevens, 559 U.S. at

470 (“Our Constitution forecloses any attempt to revise that judgment simply on the basis that some

speech is not worth it.”).

20

II. This Court should limit the “true threats”

exception to instances where the speaker

knew his remarks would communicate a

threat or intended this.

A. This mens rea requirement aligns with

this Court’s precedents.

This Court’s earliest true threats cases held statutes criminalizing “a form of pure speech” “must be

interpreted with the commands of the First Amendment clearly in mind.” Watts, 394 U.S. at 707. This

includes our “profound national commitment” to “uninhibited, robust, and wideopen” discourse, including

the “vehement, caustic, and sometimes unpleasantly

sharp,” as well as the “vituperative, abusive, and inexact.” Id. at 708; Rogers v. United States, 422 U.S.

35, 44 (1975) (Marshall, J., concurring) (noting Watts’

“eye to the danger of encroaching on constitutionally

protected speech”). Thus, the government must

“prove a true ‘threat,’” Watts, 394 U.S. at 708, one that

is real, genuine, or authentic, not hyperbole or crude

humor. Id. at 707 (noting crowd’s laughter). This requires assessing the speaker’s knowledge or intent.

Where only civil penalties were at stake, finding

that an employer engaged in an unfair trade practice

by threatening employees required the government to

assess two things: “What did the speaker intend and

the listener understand?” N.L.R.B. v. Gissel Packing

Co., 395 U.S. 575, 619 (1969) (cleaned up). If the

speaker’s mens rea matters in the civil context, it

should matter all the more in the criminal.

This Court reinforced this focus on the speaker’s

knowledge or intent when it ruled true threats “encompass those statements where the speaker means

to communicate a serious expression of an intent to

21

commit an act of unlawful violence to a particular individual or group of individuals.” Black, 538 U.S. at

359. The “clear import” and “natural reading of this

language embraces not only the requirement that the

communication itself be intentional, but also the requirement that the speaker intend for his language to

threaten the victim.” United States v. Cassel, 408 F.3d

622, 631 (9th Cir. 2005); United States v. Heineman,

767 F.3d 970, 978, 980 (10th Cir. 2014) (same).

Black added that the “speaker need not actually

intend to carry out the threat.” Black, 538 U.S. at

359–60. This qualification is meaningful only “if there

is a requirement that the defendant intend[ed] the

victim to feel threatened.” Heineman, 767 F.3d at 980.

After all, if the speaker’s intent does not matter because we look only to the reasonable person, why did

Black parse which intent counts?

Black also defined “constitutionally proscribable”

intimidation as when “a speaker directs a threat to a

person or group of persons with the intent of placing

the victim in fear of bodily harm or death.” Black, 538

U.S. at 360. It is hard to see how intent matters for

intimidation but not for other true threats. Heineman, 767 F.3d at 981.

What’s more, the Black plurality and concurring

Justices all agreed that the conviction must be set

aside because the prima facie provision absolved the

state of its need to prove the defendant’s intent.

Black, 538 U.S. at 365; id. at 379–80 (Scalia, J., concurring in part, concurring in the judgment, dissenting in part); id. at 385 (Souter, J., concurring in the

judgment in part and dissenting in part). Thus, “eight

Justices agreed that intent to intimidate is necessary

and that the government must prove it in order to

22

secure a conviction.” Cassel, 408 F.3d at 632–33; accord Heineman, 767 F.3d at 979.

Further, when construing federal law, this Court

held that government would satisfy the required mental state by proving the speaker intended to communicate a threat or knew he was doing so. Elonis v.

United States, 575 U.S. 723, 741 (2015). This is consistent with legislative history and avoids undermining the uninhibited debate the Constitution protects.

Rogers, 422 U.S. at 45–48 (Marshall, J., concurring).

B. This mens rea requirement would provide the needed breathing space for

First Amendment freedoms.

First Amendment rights “are delicate and vulnerable, as well as supremely precious,” and so the

“threat of sanctions may deter their exercise almost

as potently as the actual application of sanctions.”

Button, 371 U.S. at 433. Thus, these freedoms “need

breathing space to survive,” a principle that has regulated the scope of First Amendment exceptions. Ibid.

This Court recognized that “sex and obscenity are

not synonymous” and safeguarded the right to discuss

the former. Roth, 354 U.S. at 487–88. For defamation,

because false statements are “inevitable in free debate,” “the First Amendment requires that we protect

some falsehood in order to protect speech that matters.” Gertz, 418 U.S. at 340–41; accord Alvarez, 567

U.S. at 733 (Breyer, J., concurring in judgment)

(“[T]he threat of criminal prosecution for making a

false statement can inhibit the speaker from making

true statements[.]”). The actual malice standard for

public figures provides this required “breathing

space.” Hustler, 485 U.S. at 52.

23

For true threats, the only way to provide this

breathing space is to require some showing that the

speaker knew he was communicating a threat or intended to do so. This is the only way to allow the government to regulate speech “only with narrow specificity.” Button, 371 U.S. at 433.

This breathing space is vital to us all, but university cases perhaps best illustrate how delicate First

Amendment rights are, even where they should be

most cherished. University officials did not give the

freedoms of Peter, Mark, Ryan, and Professor Seamon

any breathing space. Rather, they thought it reasonable to use one student’s complaints, couched in melodramatic threat language, to deal out no-contact orders, punishing people for answering a question. University officials concluded that multiple complaints

meant it was reasonable to slap Maggie with a no-contact order, merely for expressing her political and religious views. Nor did Chike get any breathing

space—not even in a speech zone, not even from the

state’s attorney general’s office. Only requiring these

officials to consider the speaker’s knowledge and intent will prevent them from abusing true threats to

suppress speech.

C. This mens rea requirement would ensure that only wrongful conduct is beyond First Amendment protection.

Furthermore, we have historically required that

“wrongdoing must be conscious to be criminal,” so

that citizens can “choose between good and evil.” Elonis, 575 U.S. at 734 (cleaned up). That is, one must

“know the facts that make his conduct fit the definition of the offense, even if he does not know that those

facts give rise to a crime.” Id. at 735 (cleaned up).

24

Thus, a mens rea requirement seeks to “separate

wrongful conduct from otherwise innocent conduct,”

or here, protected speech. Id. at 736 (cleaned up).

“Having liability turn on whether a ‘reasonable person’ regards the communication as a threat—regardless of what the defendant thinks—reduces culpability . . . to negligence.” Id. at 738 (cleaned up).

If negligence is not good enough to criminalize

pure speech under federal law, it’s not good enough

for the First Amendment. Otherwise, speech—which

should be uninhibited and unfettered—would become

ripe for “technical offense[s]” where “innocent acts

[are] punishable.” Rogers, 422 U.S. at 46 (Marshall,

J., concurring). As Maggie, Peter, Mark, Ryan, Professor Seamon, and Chike know, this risk is acute in the

culture that pervades higher education. A speaker’s

knowledge or intent should matter for true threats.

D. This mens rea requirement would prevent any ambiguities in this area from

chilling protected speech.

“The Constitution requires proof of scienter to

avoid the hazard of self-censorship of constitutionally

protected material and to compensate for the ambiguities inherent in the definition of obscenity.” Mishkin

v. New York, 383 U.S. 502, 511 (1966). This requires

proving the defendant knew “the character of the material” at issue. Id. at 510. If this is a risk in the obscenity arena, it is more acute for true threats. The

only way to prove that a speaker knows the “character” of his remarks is to show that he knew he was

communicating a threat or intended to do so.

Even when prosecution is only likely, “speakers

may self-censor rather than risk the perils of trial.”

25

Ashcroft, 542 U.S. at 670–71. This creates “a potential

for extraordinary harm and a serious chill upon protected speech,” id. at 671, particularly when criminal

sanctions attach “to a mistaken judgment about the

contours of [a] novel and nebulous category of . . .

speech,” id. at 675 (Stevens, J., concurring).

If this is true for citizens facing prosecution (with

the accompanying procedural protections and affirmative defenses), the risk is far greater for faculty and

students who risk punishment, firing, or expulsion.

Keyishian, 385 U.S. at 604 (“When one must guess

what conduct or utterance may lose him his position,

one necessarily will steer far wider of the unlawful

zone.” (cleaned up)). Students should not be “forced to

guess at whether a comment about a controversial issue would later be found to be sanctionable” as a

threat, especially when a wrong one can find them on

the wrong end of a career-impacting no-contact order.

Doe v. Univ. of Mich., 721 F. Supp. 852, 867 (E.D.

Mich. 1989). If they are forced to guess, a “pall of orthodoxy” will descend on campus, as students like

Maggie, Peter, Mark, Ryan, and Chike quickly deduce

that officials, who have drunk deeply from the “speech

is violence” well, will wield the “reasonable person”

standard selectively. Keyishian, 385 U.S. at 603.

E. This mens rea requirement aligns with

the limits on other categorical First

Amendment exceptions.

No First Amendment exceptions allow speech to

be restricted, let alone criminally punished, based

solely on what a reasonable person would conclude.

True threats should not become the first.

26

1. Obscenity & Child Pornography

Even early obscenity cases recognized that “sex

and obscenity are not synonymous,” and required the

government to prove the material in question “deals

with sex in a manner appealing to prurient interest.”

Roth, 354 U.S. at 487. They also required fact-finders

to use “contemporary community standards” and to

assess “the dominant theme of the material taken as

a whole.” Id. at 489. This prevented speech from being

restricted based on how “isolated passages” might impact “the most susceptible persons.” Id. at 489. It also

prevented a juror from relying on his own “personal

opinion” or the material’s “effect on a particularly sensitive or insensitive person or group.” Hamling, 418

U.S. at 107. Later, this Court also required that (1)

the “work depicts or describes” sexual conduct “in a

patently offensive way” and (2) the “work, taken as a

whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24

(1973); Brown, 564 U.S. at 792–93 (limiting obscenity

to “depictions of sexual conduct” (cleaned up)).

The required mens rea provided more safeguards.

In Miller, defendants had to “hav[e] knowledge that

the matter is obscene.” Miller, 413 U.S. at 16 n.1.

Later, this Court ruled the “Constitution requires

proof of scienter,” meaning proof the defendant was

“aware of the character of the material.” Mishkin, 383

U.S. at 510–11. And it upheld this requirement at

least twice, Ginsberg v. New York, 390 U.S. 629, 643–

45 (1968); Hamling, 418 U.S. at 123; accord Elonis,

575 U.S. at 739 (noting Hamling required “calculated

purveyance”), and applied it to child pornography.

E.g., New York v. Ferber, 458 U.S. 747, 765 (1982) (requiring “scienter on the part of the defendant”); id. at

27

751 (noting statute required defendant to “know[] the

character and content” of child’s sexual performance).

The true threats exception should be no broader,

and the only way to know the “character and content”

of a threat is to assess the speaker’s knowledge or intent. Elonis, 575 U.S. at 739 (“‘[C]alculated purveyance’ of a threat would require that Elonis know the

threatening nature of his communication.”).

2. Defamation

On top of the traditional requirements for slander

or libel (e.g., a false statement made to a third party

that damages one’s reputation), the First Amendment

imposes additional safeguards. Public figures must

prove the speaker acted “with knowledge that [the

statement] was false or with reckless disregard of

whether it was false or not.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964); Hustler, 485 U.S. at

56 (requiring same for intentional infliction of emotional distress). Even for private figures, states may

not “impose liability without fault,” Gertz, 418 U.S. at

347, or “permit recovery of presumed or punitive damages” without “a showing of knowledge of falsity or

reckless disregard for the truth,” id. at 349–50.

True threats lack any standards like the traditional requirements for defamation. Thus, the mens

rea—knowledge or intent—must be included to protect speakers like Maggie, Peter, Mark, Ryan, Chike,

and Professor Seamon.

3. Speech Integral to Crime

When this Court assessed whether the First

Amendment protects speech integral to crime, it did

not employ a reasonable person standard. After all,

28

the union “adopted a plan which was designed to” restrain trade, and the “avowed immediate purpose of

the picketing was to compel Empire to agree to stop

selling ice to nonunion peddlers.” Giboney v. Empire

Storage & Ice Co., 336 U.S. 490, 492 (1949). It was so

clear that the union was intentionally violating the

law that this Court concluded it was their “sole, unlawful immediate objective.” Id. at 502.

Furthermore, the exception applies only to speech

“used as an integral part of” a crime, not speech a reasonable person might deem associated with it, given

all the facts and circumstances. Id. at 498. True

threats should be no broader. The only way to prevent

this is to assess the speaker’s knowledge or intent.

4. Fraud

While the First Amendment gives no protection to

fraud, Stevens, 559 U.S. at 468, these statutes “typically require proof of a misrepresentation that is material, upon which the victim relied, and which caused

actual injury.” Alvarez, 567 U.S. at 734 (Breyer, J.,

concurring). In federal court, these claims face heightened pleading requirements. FED. R. CIV. P. 9(b).

True threats have no similar guardrails. The only

way to separate the truly threatening from the intemperate is to assess the speaker’s knowledge or intent.

5. Incitement

The reasonable person does not determine

whether speech qualifies as incitement. Rather, this

exception applies only when advocacy of force or illegal conduct (1) “is directed to inciting or producing imminent lawless action” and (2) “is likely to incite or

produce such action.” Brandenburg, 395 U.S. at 447.

29

“Directed to” belies the speaker’s intent. Hess, 414

U.S. at 109 (rejecting incitement argument because

“there was no evidence . . . that his words were intended to produce . . . imminent disorder”). Indeed,

this Court distinguished “abstract teaching” from

“preparing a group for violent action and steeling it to

such action,” again emphasizing the speaker’s intent.

Brandenburg, 395 U.S. at 448 (cleaned up).

To be sure, when something is “likely to incite”

imminent lawlessness is a judgment call, but that

judgment call alone does not determine whether the

speech falls outside the First Amendment. Under Colorado’s objective standard for true threats, the reasonable person does—and that should not be.

6. Fighting Words

Nor does the reasonable person alone decide

whether speech qualifies as fighting words. Instead,

fighting words must be “directed to the person of the

hearer” and use “personally abusive epithets, which,

when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke

a violent reaction.” Cohen, 403 U.S. at 20 (cleaned up).

This Court even considered the speaker’s intent. Ibid.

(“There is . . . no showing . . . that appellant intended [to arouse anyone to violence].”).

To the lower court, true threats depend on

whether the recipient, knowing all the content and

circumstances, “would reasonably perceive [the statement] as a serious expression of intent to commit an

act of unlawful violence.” Pet.App.12a. That is, would

the reasonable recipient feel threatened? But fighting

words require (1) that the speech be directed to the

“person of the hearer,” and (2) that it be so “personally

30

abusive” that the reasonable person does not just feel

offended or threatened, does not just want to retaliate

physically, but would be “inherently likely” to respond

by “exchang[ing] fisticuffs.” Cohen, 403 U.S. at 20;

Johnson, 491 U.S. at 409; accord Hess, 414 U.S. at

107–08. Indeed, even when a speaker’s religious

views caused listeners to want to hit him and throw

him off the streets, and even when justices of this

Court viewed those sentiments as “natural[ ],” this

Court still declined to find that he had breached the

peace. Cantwell, 310 U.S. at 309.

Not even these high, long-established safeguards

are enough to protect everyone’s freedoms. Just sharing with people how Jesus Christ died on the cross

and rose again to give them eternal life was enough

for officials to accuse Chike of engaging in fighting

words—all because he allegedly disturbed someone’s

“peace and/or comfort.” But given this reality—and

the “speech is violence” mentality that afflicts too

many administrators—allowing true threats to fluctuate based solely on the reasonable person is dangerous. A speaker’s knowledge or intent should matter

before he is punished for his speech.

31

CONCLUSION

Amicus takes no position on the ultimate resolution of this case. But in formulating the test for determining that a statement is a “true threat” unprotected by the First Amendment, Amicus urges the

Court to construe the exception narrowly and limit it

to instances where the speaker knew his remarks

would communicate a threat or intended this.

Respectfully submitted,

JOHN J. BURSCH

Counsel of Record

ALLIANCE DEFENDING FREEDOM

440 First Street, NW, Ste. 600

Washington, DC 20001

(616) 450–4235

jbursch@ADFlegal.org

TYSON C. LANGHOFER

ALLIANCE DEFENDING FREEDOM

44180 Riverside Pkwy.

Lansdowne, VA 20176

TRAVIS C. BARHAM

ALLIANCE DEFENDING FREEDOM

1000 Hurricane Shoals Rd., Ste. D-1100

Lawrenceville, GA 30043

MARCH 2023