Amicus Curiae Brief — Billy Raymond Counterman, Petitioner v. Colorado
Supreme Court briefMar 31, 2023
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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 ILLINOIS, ALASKA, ARIZONA,
CONNECTICUT, DELAWARE, DISTRICT OF
COLUMBIA, HAWAII, IOWA, MAINE,
MASSACHUSETTS, MICHIGAN, MISSISSIPPI,
NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW
MEXICO, NORTH CAROLINA, OHIO, OREGON,
PENNSYLVANIA, SOUTH DAKOTA, TENNESSEE,
UTAH, VERMONT, VIRGINIA, AND WYOMING AS
AMICI CURIAE IN SUPPORT OF RESPONDENT
__________
JANE ELINOR NOTZ*
Solicitor General
ALEX HEMMER
Deputy Solicitor General
PRIYANKA GUPTA
Assistant Attorney General
* Counsel of Record
KWAME RAOUL
Attorney General
State of Illinois
100 West Randolph St.
Chicago, Illinois 60601
(312) 814-5376
Jane.Notz@ilag.gov
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... ii
INTERESTS OF AMICI CURIAE ..............................1
SUMMARY OF ARGUMENT.....................................3
ARGUMENT ...............................................................4
I.
Interpreting The First Amendment To Require
A Subjective Test For Identifying True Threats
Would Contradict Historical Understandings
Of That Amendment.............................................4
II. Imposing A Subjective Standard For Proving
True Threats Would Constitute A Dramatic
Break From Current Practice And Could
Jeopardize A Broad Range Of Important State
Laws. ...................................................................11
CONCLUSION ..........................................................32
i
TABLE OF AUTHORITIES
Page(s)
Cases
Brooker v. Silverthorne,
99 S.E. 350 (S.C. 1919) ..........................................8
Brown v. Pierce,
74 U.S. 205 (1868)................................................10
Buchanan v. Sahlein,
9 Mo. App. 552 (1881) ............................................9
Burns v. Burns,
13 Fla. 369 (1869) ..................................................8
Chaplinsky v. New Hampshire,
315 U.S. 568 (1942)..............................................12
Chiafalo v. Washington,
140 S. Ct. 2316 (2020)............................................5
Citizen Publishing Co. v. Miller,
115 P.3d 107 (Ariz. 2005) ....................................27
Coleman v. United States,
202 A.3d 1127 (D.C. 2019) ...................................17
Commonwealth v. Dudley,
10 Mass. 403 (1813) ...............................................8
Commonwealth v. Everhart,
57 Pa. Super. 192 (1914) ........................................7
ii
Commonwealth v. Milo M.,
740 N.E.2d 967 (Mass. 2001)...............................21
Commonwealth v. Shattuck,
58 Mass. 141 (1849) ...........................................6, 7
Delgado v. Souders,
46 P.3d 729 (Or. 2002) .........................................30
Dickinson v. Maguire,
9 Cal. 46 (1858) ......................................................8
Elonis v. United States,
575 U.S. 723 (2015)........... 1-2, 5, 10-11, 19, 22, 24
Fin. Oversight & Mgmt. Bd. for Puerto Rico v.
Aurelius Inv., LLC, 140 S. Ct. 1649 (2020) ...........5
Foster v. Kelsey,
36 Vt. 199 (1863) ....................................................6
Fowler’s Adm’r v. Knight,
10 Ark. 43 (1849) ...................................................8
Franklin v. Geho,
3 S.E. 168 (W. Va. 1887) ........................................8
Goad v. Heckler,
19 Colo. App. 479 (1904) ........................................7
Grimes v. Gates,
47 Vt. 594 (1873) ................................................ 8-9
Gulf, C. & S.F. Ry. Co. v. Levy,
59 Tex. 563 (1883) ..................................................9
iii
Harratt v. Harratt,
7 N.H. 196 (1834) ...................................................8
Harris v. Carmody,
131 Mass. 51 (1881) ...............................................9
Harrow v. Baker,
2 Greene 201 (Iowa 1849) ......................................7
Haughwout v. Tordenti,
211 A.3d 1 (Conn. 2019) .......................... 19, 20, 21
Hines v. Bd. of Comm’rs of Hamilton Cnty.,
93 Ind. 266 (1884) ..................................................9
Hodson v. State,
No. 50759, 2009 WL 1424492
(Nev. Jan. 8, 2009) ...............................................17
Hoffman v. Harrington,
22 Mich. 52 (1870)..................................................6
Holcomb v. Commonwealth,
709 S.E.2d 711 (Va. Ct. App. 2011) ...............17, 24
In re A.S.,
626 N.W.2d 712 (Wis. 2001) ................................17
In re Douglas D.,
626 N.W.2d 725 (Wis. 2001) ................................27
In re Kyle M.,
27 P.3d 804 (Ariz. Ct. App. 2001) ..................21, 31
Int. of: J.J.M.,
265 A.3d 246 (Pa. 2021) .......................................21
iv
Kramer v. Lott,
50 Pa. 495 (1865) ...................................................6
Ladd v. Dubroca,
45 Ala. 421 (1871) ..................................................8
Livingston v. Webster,
8 So. 442 (Fla. 1890) ..............................................8
Marsh v. Bristol,
32 N.W. 645 (Mich. 1887) ..................................6, 8
Mason v. Mason,
1 Edw. Ch. 278 (N.Y. Ch. 1831) ............................8
McGowen v. Bush,
17 Tex. 195 (1856) ..................................................9
N.L.R.B. v. Noel Canning,
573 U.S. 513 (2014)..............................................11
New York v. Ferber,
458 U.S. 747 (1982)................................................2
Page v. Dwight,
170 Mass. 29 (1897) ...............................................6
People ex rel. C.C.H.,
651 N.W.2d 702 (S.D. 2002) ................................27
People v. Herzberg,
No. 265546, 2007 WL 839375 (Mich. Ct. App.
Mar. 20, 2007) ......................................................17
People v. Lagano,
39 N.Y.3d 108 (2022) ...........................................18
v
People v. Rickert,
8 Cow. 226 (N.Y. Sup. Ct. 1828) ............................6
Ponce v. Socorro Indep. Sch. Dist.,
508 F.3d 765 (5th Cir. 2007)................................19
R.A.V. v. City of St. Paul, Minn.,
505 U.S. 377 (1992).................................. 1, 4-5, 31
Roberts v. State,
78 S.W.3d 743 (Ark. Ct. App. 2002) ....................21
Smith v. Reeder,
21 Or. 541 (1892) ...................................................7
SP v. BEK,
981 N.W.2d 500 (Mich. 2021) ..............................16
State v. Cargill,
4 S.C.L. 445 (S.C. Const. App. 1810).....................6
State v. Davis,
109 N.C. 809 (1891) ...............................................7
State v. Heffron,
190 A.3d 232 (Me. 2018) ......................................24
State v. Kohonen,
370 P.3d 16 (Wash. Ct. App. 2016) .....................27
State v. Lance,
721 P.2d 1258 (Mont. 1986) .................................17
State v. McCarthy,
101 P.3d 288 (Mont. 2004)...................................17
vi
State v. Neuzil,
589 N.W.2d 708 (Iowa 1999) .........................17, 24
State v. Pollok,
26 N.C. 305 (1844) .................................................7
State v. Taveras,
271 A.3d 123 (Conn. 2022) ............................26, 27
State v. Terrio,
No. 19-K-90, 2019 WL 1285288 (La. Ct. App.
Mar. 20, 2019) ...............................17, 23-24, 29, 30
State v. Tolever,
27 N.C. (5 Ired.) 452 (N.C. 1845) ......................6, 7
Virginia v. Black,
538 U.S. 343 (2003).................................... 1, 12, 26
Warren v. Warren,
3 Mass. 321 (1807) .................................................8
Watts v. United States,
394 U.S. 705 (1969)........................................27, 28
Winn v. State,
18 S.W. 375 (Ark. 1892) .........................................6
Winterfield v. Stauss,
24 Wis. 394 (1869)..................................................8
Wittig v. Hoffart,
704 N.W.2d 415 (Wisc. Ct. App. 2005) ................24
vii
Statutes
17-A Maine Rev. Stat. Ann.
§ 210 .....................................................................16
§ 210-B ......................................................................... 16
Ala. Code 1975
§ 13A-6-90(a) ........................................................29
§ 13A-6-90.1(a) ...............................................16, 29
Ariz. Rev. Stat. Ann. § 13-3004 ................................16
Ark. Code Ann. § 5-71-229(c)(1)..........................16, 29
Cal. Fam. Code § 6203(a)(3)......................................16
Cal. Penal Code § 140(a) ...........................................16
Colo. Rev. Stat. § 18-3-602(1)(c) ...........................4, 30
D.C. Code § 22-3133(a)(3) .........................................16
Iowa Code Ann.
§ 708.11 ................................................................16
§ 712.8 ..................................................................16
La. Rev. Stat. Ann. § 14:40.2 ..............................16, 30
Mass. Gen. Laws Ann. Ch. 275, § 2 ..........................16
Mich. Comp. Laws Ann.
§ 600.2950a(3)(b)..................................................16
§ 750.411h ................................................ 16, 28-29
§ 750.411i .............................................................16
§ 750.411x ............................................................29
viii
Mont. Code Ann. § 45-5-203 .....................................16
Or. Rev. Stat. Ann.
§ 30.866(1) ......................................................16, 30
§ 163.732(1) ..........................................................30
Tex. Fam. Code § 71.004(1)........................... 16-17, 30
Tex. Penal Code § 25.07(a)(2) ...................................30
Va. Code Ann.
§ 18.2-60(A)(1) ......................................................17
§ 18.2-60.1 ............................................................17
Wis. Stat. Ann. § 947.01(1) .......................................17
Wyo. Stat. Ann. § 6-6-103(b) .....................................17
Other Authorities
Abrams, Zara, Stress of Mass Shootings Causing
Cascade of Collective Traumas, 53 Monitor on
Psych. 20 (2022) ...................................................13
Andersen, Lars Peter, et al., Crisis Social Support
After Work-Related Violence and Threats and
Risk for Depressive Symptoms: A 3-Months
Follow-up Study, 11:42 BMC Psych. 1 (2023) ....14
Belknap, Joanne, et al., The Roles of Phones and
Computers in Threatening and Abusing Women
Victims of Male Intimate Partner Abuse, 19
Duke J. Gender L. & Pol’y 373 (2012).................22
Bergengruen, Vera, The United States of Political
Violence, Time (Nov. 4, 2022) ...............................15
ix
Blackstone, W., 3 Commentaries on the Laws of
England (1768) ........................................................9
Boyle, Patrick, Threats Against Healthcare Workers
Are Rising, Association of American Medical
Colleges (Aug. 18, 2022)........................................15
Chemaly, Soraya & Mary Anne Franks, Supreme
Court May Have Made Online Abuse Easier,
Time (June 3, 2015) ..............................................23
Citron, Danielle Keats & Helen Norton, Intermediaries and Hate Speech: Fostering Digital
Citizenship for Our Information Age, 91 B.U.
L. Rev. 1435 (2011). ........................................14, 25
Crenshaw, Zach, School Threats on the Rise PostUvalde Massacre, Officials Say, ABC (Nov. 22,
2022) ......................................................................15
D.C. Coalition Against Domestic Violence, Surviving
D.C.: A Research Synthesis of Domestic Violence
Survivors’ Experiences (May 2018) .......................13
Friborg, Oddgeir, et al., Violence Affects Physical and
Mental Health Differently: The General Population Based Tromsø Study, 10 Plos One 1
(2015) .....................................................................13
Hernandez, Joe, Hate Crimes Reach the Highest
Level in More Than a Decade, NPR
(Sept. 1, 2021)........................................................25
x
Leemis, Ruth W. et al., The National Intimate
Partner and Sexual Violence Survey, Centers for
Disease Control and Prevention
(Oct. 2022) ......................................................15, 22
Letter from Executive Board of the American
Library Association to FBI Director Christopher
A. Wray (Sept. 27, 2022) .......................................15
Letter to S. Roane (Sept. 2, 1819), in 8 Writings of
James Madison 450 (G. Hunt ed. 1908) .................5
Magellan Healthcare, Living with Threats of
Violence (June 2020) .............................................13
Marshall, Jim, FBI Reminds Public Hoax Online
Threats Have Serious Consequences, FBI
(Jan. 8, 2020) ...................................................14, 20
Masterson, Matt, Man Facing Hate Crime Charges
Allegedly Threatened to ‘Burn’ Rabbi ‘In a Gas
Oven’ During Confrontation Outside Jewish
High School, WTTW News (Dec. 13, 2022) ..........25
Melillo, Gianna, Majority of Americans Report
Seeing Online Threats of Violence Based on
Race, Gender or Sexuality, The Hill
(Nov. 28, 2022) ......................................................16
Miles, Jessica, Straight Outta SCOTUS: Domestic
Violence, True Threats, and Free Speech,
74 Univ. of Miami L. Rev. 711 (2020).............22, 23
Montesinos, Patsy, Students’ Mental Health Impacted
by School Threats, WHSV3 (Sep. 23, 2022) .........13
xi
O’Neil, Adrienne & Anna J. Scovelle, Intimate
Partner Violence Perpetration and Cardiovascular
Risk: A Systematic Review, 10 Preventative
Medicine Reports 15 (2018) ..................................13
Press Release, Department of Justice, Office of
Public Affairs, Associate Attorney General
Vanita Gupta Issues Statement on the FBI’s
Supplemental 2021 Hate Crime Statistics
(Mar. 13, 2023) .....................................................25
Press Release, Ready Illinois, State of Illinois
Launches New School Safety Initiative,
Safe2Help Illinois, (Oct. 20, 2021)........................19
Press Release, Department of Justice, U.S. Attorney’s Office, District Woman Sentenced to Prison
for Hate Crime Targeting Member of the Asian
Community (June 9, 2021) ..................................26
Quinton, Sophie, To Prevent Suicides and School
Shootings, More States Embrace Anonymous
Tip Lines, Stateline (Mar. 16, 2018)............... 19-20
Randall, Allison, Office on Violence Against Women
Observes National Stalking Awareness Month,
U.S. Department of Justice (Jan. 25, 2023) .........14
Richards, Zoe, Capitol Police Investigated More Than
7,500 Threats Against Lawmakers Last Year,
NBC (Jan. 17, 2023) ..............................................15
Report Hate Crimes to the FBI, FBI .........................25
xii
Sikora, Colleen, Arizona Schools Got Lots of Threats
this Semester. How is it Affecting Students’
Mental Health?, 12 News (Dec. 23, 2022) ............13
Stalking Prevention Awareness & Resource Center,
Stalking Fact Sheet (Jan. 2019). ..........................14
Stoever, Jane K., Access to Safety and Justice:
Service of Process in Domestic Violence Cases, 94
Wash. L. Rev. 333 (2019) ......................................22
Stoever, Jane K., Transforming Domestic Violence
Representation, 101 Ky. L.J. 483 (2013) .............23
Velez, Monica, Real or Not, Threats of Violence Have
Serious Consequences in Seattle Schools,
The Seattle Times (Jan. 31, 2022) ........................20
Walker, Tim, Violence, Threats Against Teachers,
School Staff Could Hasten Exodus From Profession, National Education Association (Mar. 18,
2022) ......................................................................15
World Health Organization, Violence Against
Women (Mar. 9, 2021) ...........................................15
Young, Ryan T., Violent Extremism and Terrorism:
Examining the Threat to Houses of Worship and
Public Spaces, Statement Before the Senate
Homeland Security and Governmental Affairs
Committee (Mar. 16, 2022) ...................................14
xiii
INTERESTS OF AMICI CURIAE
The States of Illinois, Alaska, Arizona, Connecticut, Delaware, Hawaii, Iowa, Maine, Massachusetts,
Michigan, Mississippi, Nevada, New Hampshire, New
Jersey, New Mexico, North Carolina, Ohio, Oregon,
Pennsylvania, South Dakota, Tennessee, Utah, Vermont, Virginia, and Wyoming, and the District of Columbia (collectively, the “amici States”) submit this
brief in support of Colorado.
For centuries, the States have regulated “serious
expression[s] of an intent to commit an act of unlawful
violence” against another person in civil and criminal
contexts. Virginia v. Black, 538 U.S. 343, 359 (2003).
As this Court has long recognized, and as petitioner
does not dispute, see Pet. Br. 40, these regulations are
critical safeguards for the public health and safety:
they protect state residents from “the fear of violence,” “the disruption that fear engenders,” and “the
possibility that the threatened violence will occur.”
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 388
(1992). The States have a significant interest in
maintaining their flexibility to enact and enforce such
regulations.
Of course, the States also have an interest in free
speech protections. But threats of violence are of
“such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the societal interest in order and morality.” Id. at 383 (internal quotations omitted). Such
statements—so-called “true threats”—are thus “outside the First Amendment.” Id. at 388; see Elonis v.
1
United States, 575 U.S. 723, 746 (2015) (Alito, J., concurring in part and dissenting in part) (“True threats
inflict great harm and have little if any social value.”).
By regulating true threats, the States can thus serve
their interest in protecting their residents from the
harms of threats without compromising their interest
in preserving free speech. See New York v. Ferber,
458 U.S. 747, 763-764 (1982) (government appropriately balances competing interests when it regulates
class of speech whose harms “overwhelmingly outweigh[ ] the expressive interests”).
Accepting petitioner’s view would upset this balance. Continuing a robust historical practice, many
state statutes employ an objective standard—assessing whether a reasonable person would understand the statement, given its context, to be a serious
expression of an intent to commit unlawful violence—
to identify true threats.1 Likewise, the majority of
state courts to have addressed the question use an objective standard when assessing whether a statement
is a true threat. It is the amici States’ experience that
an objective standard is a powerful tool for reaching
threats of violence, which can cause harm by their
very utterance, and for intervening before violence occurs in a variety of contexts, including threatened
school shootings, domestic abuse, and hate crimes.
The States have varied in whether this standard examines the
perspective of a reasonable speaker or a reasonable listener, but
the central inquiry remains the perspective of a reasonable person.
1
2
To be sure, some States have also used a subjective standard—requiring proof of the speaker’s mental state regarding the statement’s threatening nature and effects—to assess threats in some circumstances. But those policy decisions have always been
reserved to state legislatures. The amici States thus
urge this Court to reject petitioner’s arguments and
hold that the First Amendment is not violated when
courts assess threats of violence objectively.
SUMMARY OF ARGUMENT
The Court should reject petitioner’s understanding of the First Amendment for multiple overlapping
reasons. First, petitioner’s standard would divorce
the First Amendment from its historical underpinnings, as the States have utilized an objective standard to regulate threats of violence across multiple contexts since the Founding. Second, it would jeopardize
a host of present-day state laws—both civil and criminal—that safeguard the public health and safety by
subjecting threats to an objective assessment and
would constrain state efforts to protect their residents
from these threats. While the States have chosen to
utilize a subjective standard when regulating threats
in some contexts, these regulations represent policy
choices to exceed the First Amendment’s floor for a
variety of reasons. Those policy choices should remain reserved to the States, and this Court should decline petitioner’s invitation to upend centuries of state
efforts to protect their residents from the undisputed
harms that flow from the very utterance of threats of
violence.
3
ARGUMENT
The States’ experience confirms that the First
Amendment does not protect threats that a reasonable person would understand as a serious expression
of an intent to commit an act of unlawful violence—
those that satisfy an objective standard.2 Petitioner’s
contrary arguments cannot be squared with history,
would call into question a wide range of state statutes
and efforts to protect their residents, and should accordingly be rejected.
I.
Interpreting The First Amendment To Require A Subjective Test For Identifying True
Threats Would Contradict Historical Understandings Of That Amendment.
“From 1791 to the present, . . . our society . . . has
permitted restrictions upon the content of speech in
a few limited areas, which are of such slight social
value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social
Colorado’s statute requires that the speaker “knowingly . . .
ma[de]” the challenged statement. Colo. Rev. Stat. § 18-3602(1)(c). The dispute, therefore, is not whether the State must
prove that the speaker intended to act or knowingly acted, i.e.,
that he knew he was sending an electronic message. Instead,
the parties dispute whether the First Amendment requires proof
of the speaker’s mental state as to the statement’s nature and
effects, i.e., that the speaker knew or intended the threatening
nature of the statement, or whether proof under an objective
standard is sufficient. See Pet. Br. 44 (arguing that First
Amendment “at minimum” requires a showing of “a defendant’s
knowledge that his speech will be regarded as a threat”) (emphasis omitted).
2
4
interest in order and morality.” R.A.V., 505 U.S. at
382-383 (internal quotations omitted). These restrictions included proscriptions against “threats of
violence.” Id. at 388; see Elonis, 575 U.S. at 761
(Thomas, J., dissenting) (noting States’ practice of
regulating threats began “[s]hortly after the founding”). Importantly, in the 18th and 19th centuries,
the States regularly utilized an objective standard
when taking and permitting civil and criminal action
based on threats of violence—demonstrating that the
ratifiers of the First and Fourteenth Amendments did
not understand the freedom of speech to protect
threats of violence, regardless of whether the speaker
knew or intended the threatening nature of his statement, or made it with reckless disregard to its effect
on the listener.
This history provides “strong evidence of the original meaning” of the First Amendment. Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv.,
LLC, 140 S. Ct. 1649, 1659 (2020). History can be a
useful tool for constitutional interpretation because
“‘a regular course of practice’ can ‘liquidate [and] settle the meaning’ of’ disputed or indeterminate ‘terms
[and] phrases.’” Chiafalo v. Washington, 140 S. Ct.
2316, 2326 (2020) (quoting Letter to S. Roane (Sept.
2, 1819), in 8 Writings of James Madison 450 (G. Hunt
ed. 1908)). To this end, the amici States offer the following historical examples as a supplement to those
discussed by Colorado. See Colorado Br. § I.B.
1. Following the English tradition, many States
criminalized the use of threats of bodily injury to force
another to allow access to, or part with, property—
5
that is, to commit forcible entry or detainer. E.g.,
State v. Cargill, 4 S.C.L. 445, 466 (S.C. Const. App.
1810); People v. Rickert, 8 Cow. 226, 229 (N.Y. Sup.
Ct. 1828); State v. Tolever, 27 N.C. (5 Ired.) 452, 454
(N.C. 1845) (recognizing common law crime); Foster v.
Kelsey, 36 Vt. 199, 201, 203 (1863); Kramer v. Lott, 50
Pa. 495, 497 (1865) (discussing Pennsylvania criminal
statutes from 1700 and 1860); Hoffman v. Harrington,
22 Mich. 52, 54-57 (1870) (discussing criminal liability for forcible entry); Marsh v. Bristol, 32 N.W. 645,
649 (Mich. 1887) (threat of force constitutes forcible
entry); Winn v. State, 18 S.W. 375, 375 (Ark. 1892)
(discussing 1808 law); Page v. Dwight, 170 Mass. 29,
31, 35 (1897) (discussing Massachusetts criminal forcible entry statutes dating back to 1692 and 1701)
(citing Commonwealth v. Shattuck, 58 Mass. 141, 145
(1849) (threats of violence can constitute forcible entry)). In setting out the elements of these offenses,
the state statutes generally did not include a requisite
mental state as to the statement’s threatening nature
or effects. For instance, Pennsylvania’s statute provided that an individual would be guilty of forcible detainer if he “shall by force and with a strong hand, or
by menaces or threats, unlawfully hold or keep the
possession of lands or tenements.” Kramer, 50 Pa. at
497 (discussing Act of 1860) (cleaned up); see also
Rickert, 8 Cow. at 232 (discussing elements of state
forcible entry and detainer statute without mentioning mental state as to statement’s threatening nature
or effects); Foster, 36 Vt. at 201-202 (same); Winn, 18
S.W. at 375 (same); Dwight, 170 Mass. at 31 (same).
Additionally, in reviewing prosecutions of these
crimes, state courts adopted the approach utilized by
6
English courts, which permitted criminal prosecution
for forcible entry or detainer when the defendant
made statements that gave the listener “reasonable
cause to fear”—without requiring proof that the
speaker knew or intended the threatening nature of
his statements, or acted recklessly in this regard.
Shattuck, 58 Mass. at 145; see, e.g., Tolever, 27 N.C.
(5 Ired.) at 454; State v. Davis, 109 N.C. 809, 883
(1891) (citing State v. Pollok, 26 N.C. 305, 309 (1844));
Commonwealth v. Everhart, 57 Pa. Super. 192, 205
(1914) (discussing 1860 statute); see also Smith v.
Reeder, 21 Or. 541, 548 (1892) (recognizing “general
rule,” for both civil and criminal liability for forcible
entry and detainer, that defendant is liable for “menaces or acts giving reasonable cause to fear”); Goad v.
Heckler, 19 Colo. App. 479, 482 (1904) (explaining
that state law reflected requirements of English law,
under which criminal liability attached for speech
that “tend[ed] to inspire a just apprehension of violence”) (internal quotations omitted).
2. This historical practice—permitting liability
based on threats of violence without requiring proof of
the speaker’s subjective mental state as to the threatening nature and effects of his statements—was so
widespread that it was also utilized in the civil context, in which the First Amendment can provide a defense against private actions brought under federal
law. For instance, many States enacted civil statutes
providing for relief for forcible entry or detainer; these
statutes were modeled after their criminal counterparts and thus likewise did not require proof that the
defendant knew or intended the threatening nature of
his statement, or recklessly disregarded the risk that
7
it would cause fear. See, e.g., Commonwealth v. Dudley, 10 Mass. 403, 409 (1813); Fowler’s Adm’r v.
Knight, 10 Ark. 43, 49 (1849); Harrow v. Baker, 2
Greene 201, 204 (Iowa 1849); Dickinson v. Maguire, 9
Cal. 46, 49 (1858); Winterfield v. Stauss, 24 Wis. 394,
398-400 (1869); Ladd v. Dubroca, 45 Ala. 421, 428
(1871); Franklin v. Geho, 3 S.E. 168, 173 (W. Va.
1887); Livingston v. Webster, 8 So. 442, 444 (Fla.
1890); see also Marsh, 32 N.W. at 649 (recognizing
that civil liability for forcible detainer and entry required “same kind of proof” as criminal liability).
As another example, many States enacted statutes allowing an individual to obtain a divorce upon a
showing of extreme cruelty, which state courts held
was satisfied by proof that that one’s spouse had made
threats that would cause a reasonable fear of bodily
harm, without requiring any showing as to the
speaker’s mental state as to the statement’s threatening nature and effects. See, e.g., Warren v. Warren, 3
Mass. 321, 321 n.1 (1807); Mason v. Mason, 1 Edw.
Ch. 278, 291 (N.Y. Ch. 1831); Harratt v. Harratt, 7
N.H. 196, 198 (1834); Burns v. Burns, 13 Fla. 369, 373
(1869). These laws were derived from English law,
which focused on whether the “words of menace . . .
excite[d] a reasonable apprehension of bodily harm.”
Burns, 13 Fla. at 374; see Mason, 1 Edw. Ch. at 291292. And they protected state residents by allowing
them to separate from abusive spouses before “hurt is
actually done.” Harratt, 7 N.H. at 198.
Moreover, state courts historically allowed the
victim of a threat of violence to bring a tort action
when that threat caused him objectively reasonable
fear that led to pecuniary loss. See, e.g., Grimes v.
8
Gates, 47 Vt. 594, 598 (1873); Gulf, C. & S.F. Ry. Co.
v. Levy, 59 Tex. 563, 568 (1883); Brooker v. Silverthorne, 99 S.E. 350, 352 (S.C. 1919). These actions
flowed from English common law, which recognized
the need to redress the disruptive effects of the fear
caused by such threats: it provided a remedy for individuals who receive “threats and menaces of bodily
hurt, through fear of which [their] business is interrupted.” 3 W. Blackstone, Commentaries on the Laws
of England, *120 (1768); see Gulf C., 59 Tex. at 568569 (collecting English authorities as precursor to
such state laws). In analyzing the statutes designed
to protect individuals from such disruption, the state
courts routinely did not require proof of the speaker’s
subjective mental state as to the statement’s threatening nature or effects, instead assessing only
whether the threats would cause fear in “persons of
ordinary firmness.” Grimes, 47 Vt. at 598; see, e.g.,
Gulf, C., 59 Tex. at 569; Brooker, 99 S.E. at 352.
3. Congress and federal courts later followed
suit and affirmed the States’ use of an objective standard. As one example, state courts consistently concluded that an individual had suffered duress, and
thus could be released from contractual obligations,
when subjected to threats that would “excite a reasonable fear” in the mind “of a person of ordinary firmness,” regardless of the speaker’s mental state as to
the statement’s threatening nature and effects. Buchanan v. Sahlein, 9 Mo. App. 552, 557-558 (1881);
see, e.g., McGowen v. Bush, 17 Tex. 195, 199 (1856);
Harris v. Carmody, 131 Mass. 51, 53 (1881); Hines v.
Bd. of Comm’rs of Hamilton Cnty., 93 Ind. 266, 271
(1884). This Court endorsed that approach as correct
9
under federal common law the same year that the
Fourteenth Amendment was ratified, Brown v. Pierce,
74 U.S. 205, 214 (1868), providing important insight
into the scope of the First Amendment at the time it
was incorporated against the States. Moreover, when
Congress entered “the business of regulating threats”
in 1917 by enacting a statute that prohibited depositing into the mail letters containing threats to harm
the President, federal courts interpreted the statute
as requiring only general intent (knowledge with respect to the action, i.e., an intent to deposit the letter),
rather than a specific intent to threaten. Elonis, 575
U.S. at 760 (Thomas, J., dissenting). State and federal entities thus shared a common understanding
that the First Amendment does not protect threats of
violence that meet an objective standard.
4. Petitioner, for his part, fails to grapple with
this strong historical practice. Instead, he points to a
handful of examples in which the States sometimes
chose to require proof of a specific intent to threaten
when regulating threats. See Pet. Br. 18-20. But that
evidence simply shows that the States exercised their
discretion to go beyond the constitutional baseline by
using the subjective standard in some contexts, depending on policy concerns and local needs. Most obviously, petitioner’s historical examples all concern
criminal liability. See ibid. But the true-threats doctrine applies in both civil and criminal contexts, and
the States commonly require heightened proof of a
subjective mental state in criminalizing certain conduct but not when enacting civil penalties for the
same conduct—a choice petitioner’s rule would foreclose. See infra pp. 29-30; see also Elonis, 575 U.S. at
10
748 (Alito, J., concurring in part and dissenting in
part) (citing both criminal and civil cases when discussing scope of true threats exception). Petitioner’s
evidence thus reveals little about historical perceptions of the First Amendment’s floor and instead
demonstrates only that some States have chosen to
exceed that floor when enacting criminal laws. And it
certainly does not negate the historical understanding that the First Amendment permits the States to
proscribe threats of violence based on an objective
standard, as many chose to do.
In short, Colorado’s interpretation of the First
Amendment is “reinforced by centuries of history,”
N.L.R.B. v. Noel Canning, 573 U.S. 513, 556 (2014),
which demonstrate that the States have long restricted threats of violence under an objective standard. This Court should be “hesitant to disturb” that
longstanding practice and to adopt a view of the First
Amendment divorced from its historical understanding. Ibid.
II. Imposing A Subjective Standard For Proving True Threats Would Constitute A Dramatic Break From Current Practice And
Could Jeopardize A Broad Range Of Important State Laws.
The States’ longstanding practice of regulating
threats of violence—including without requiring proof
of the speaker’s subjective mental state as to the
statement’s threatening nature and effects—continues today. Many state statutes utilize an objective
standard for establishing when a statement qualifies
11
as a true threat. In the amici States’ experience, this
objective standard is an important tool for protecting
their residents from the well-established harms that
flow from threats of violence: it facilitates criminal
prosecutions and also enables the States to take important civil and administrative action. Accepting petitioners’ view of the First Amendment would
threaten these state laws and hamper the amici
States’ ability to shield their residents from the fear,
disruption, and potential violence that such threats
engender.
1. The States commonly regulate threats of violence in civil and criminal contexts. These regimes—
including the many state statutes that use objective
standards, see infra pp. 16-17—are integral to safeguarding the physical, mental, and emotional wellbeing of the States’ residents. And this Court has long
recognized that the States have a substantial interest
in protecting their residents from the fear and disruption associated with threats of violence, “‘which by
their very utterance inflict [such] injury,’” and from
the occurrence of the threatened violence. Virginia,
538 U.S. at 359-360 (quoting Chaplinsky v. New
Hampshire, 315 U.S. 568, 572 (1942)); see R.A.V, 505
U.S. at 388.
Threats of violence adversely impact peoples’
lives in a variety of ways. For instance, the fear and
stress these threats cause can, and often do, result in
severe and lasting damage to the victim’s physical
12
and mental health.3 For example, a student who receives threats that she and her classmates will be
gunned to death may struggle to eat and sleep, experience heightened anxiety, and even suffer delayed
cognitive development that inhibits her ability to
learn.4 Threats of violence, moreover, can erode autonomy by forcing individuals to alter their behavior
and even uproot their lives. Stalking victims, for example, often quit their jobs, change their phone numbers, and repeatedly move due to fear of threatened
Magellan Healthcare, Living with Threats of Violence (June
2020), https://bit.ly/3ndDR5y; see Lars Peter Andersen et al.,
Crisis Social Support After Work-Related Violence and Threats
and Risk for Depressive Symptoms: A 3-Months Follow-up
Study, 11:42 BMC Psych. 1, 2 (2023) (threats of violence at work
can trigger anxiety, depression, post-traumatic stress disorder,
and sleep disorders); D.C. Coalition Against Domestic Violence,
Surviving D.C.: A Research Synthesis of Domestic Violence Survivors’ Experiences at 10 (May 2018), https://bit.ly/3y0nSKw
(discussing mental and physical effects of intimate personal violence, including threats of violence, on domestic abuse victims);
Adrienne O’Neil & Anna J. Scovelle, Intimate Partner Violence
Perpetration and Cardiovascular Risk: A Systematic Review, 10
Preventative Medicine Reports 15, 15-16 (2018) (stress caused
by intimate partner violence, including threats of violence, can
cause cardiovascular damage); Oddgeir Friborg et al., Violence
Affects Physical and Mental Health Differently: The General
Population Based Tromsø Study, 10 Plos One 1, 8 (2015) (threats
of violence can cause musculoskeletal pain).
3
Zara Abrams, Stress of Mass Shootings Causing Cascade of
Collective Traumas, 53 Monitor on Psych. 20, 24 (2022); Colleen
Sikora, Arizona Schools Got Lots of Threats this Semester. How
is it Affecting Students’ Mental Health?, 12 News (Dec. 23, 2022),
https://bit.ly/3Y3G4NT; Patsy Montesinos, Students’ Mental
Health Impacted by School Threats, WHSV3 (Sep. 23, 2022),
https://bit.ly/3ZvmbR0.
4
13
violence—causing them severe financial stress and
forcing them to leave behind friends and family at a
time when they urgently require emotional support.5
Victims of threats based on race or religious affiliation, as another example, may stay home from school,
stop reporting to work, or cease participating in public
life altogether for fear that they will be victims of a
hate crime.6 These adverse consequences affect not
only the victims of threats but also their loved ones
and communities—such as the parents who remove
their children from school following threats of a school
shooting, or the individuals of faith who cease attending their place of worship after it is threatened with a
bomb attack.7
Moreover, these threats and their ensuing harms
are on the rise. In recent years, individuals of all
walks of life—from public figures such as lawmakers
Acting Director Allison Randall, Office on Violence Against
Women Observes National Stalking Awareness Month, U.S. Department of Justice (Jan. 25, 2023), https://bit.ly/3TLiUv2;
Stalking Prevention Awareness & Resource Center, Stalking
Fact Sheet (Jan. 2019), https://bit.ly/2VTGibg.
5
Danielle Keats Citron & Helen Norton, Intermediaries and
Hate Speech: Fostering Digital Citizenship for Our Information
Age, 91 B.U. L. Rev. 1435, 1448-1450 (2011).
6
FBI Executive Assistant Director Ryan T. Young, Violent Extremism and Terrorism: Examining the Threat to Houses of Worship and Public Spaces, Statement Before the Senate Homeland
Security and Governmental Affairs Committee (Mar. 16, 2022),
https://bit.ly/3y39il7; Jim Marshall, FBI Reminds Public Hoax
Online Threats Have Serious Consequences, FBI (Jan. 8, 2020),
https://bit.ly/3ZtLy5D.
7
14
and judges and their families;8 to caregivers such as
healthcare workers and teachers;9 to the most vulnerable residents of society, such as domestic abuse victims and students—have been forced to deal more
regularly with the fear and disruption caused by
threats of violence.10 Changes in technology, including society’s increased reliance on the internet, have
Vera Bergengruen, The United States of Political Violence,
Time (Nov. 4, 2022), https://bit.ly/3Z6M4GH (describing a
“surge” of violent threats against public officials, with threats
against federal judges increasing by 400% in the past six years);
Zoe Richards, Capitol Police Investigated More Than 7,500
Threats Against Lawmakers Last Year, NBC (Jan. 17, 2023),
https://nbcnews.to/3U0N25X (according to Capitol Police,
threats against members of Congress remain “historically
high”).
8
Patrick Boyle, Threats Against Healthcare Workers Are Rising,
Association of American Medical Colleges (Aug. 18, 2022),
https://bit.ly/41mXYOi; Tim Walker, Violence, Threats Against
Teachers, School Staff Could Hasten Exodus From Profession,
National
Education
Association
(Mar.
18,
2022),
https://bit.ly/3SAEIZV; Letter from Executive Board of the
American Library Association to FBI Director Christopher A.
Wray (Sept. 27, 2022), https://bit.ly/3IXcNQm (expressing
“grave[ ] concern” that increasing threats of violence against
public library workers will “lead to actual violence”).
9
Zach Crenshaw, School Threats on the Rise Post-Uvalde Massacre, Officials Say, ABC (Nov. 22, 2022), https://bit.ly/3SGuyqv;
Ruth W. Leemis et al., The National Intimate Partner and Sexual Violence Survey, Centers for Disease Control and Prevention
at 24-25 (Oct. 2022), https://bit.ly/41tzvHe; World Health Organization,
Violence
Against
Women
(Mar.
9,
2021),
https://bit.ly/2SxhJOU.
10
15
facilitated the surge in threats.11 Now, more than
ever, the States need to be able to protect their residents from the fear and disruption caused by threats
of violence, as well as to intervene in situations before
threatened violence occurs.
2. Consistent with their historical practice, see
supra Part I, many States achieve these important
goals by using an objective standard to penalize
threats across multiple contexts—civil and criminal.
See, e.g., Ala. Code 1975 § 13A-6-90.1(a) (second-degree stalking); Ariz. Rev. Stat. Ann. § 13-3004 (threatening letter); Ark. Code Ann. § 5-71-229(c)(1) (thirddegree stalking); Cal. Fam. Code § 6203(a)(3) (abuse);
Cal. Penal Code § 140(a) (threatening witnesses, victims, or informants); D.C. Code § 22-3133(a)(3) (stalking); Iowa Code Ann. § 708.11 (stalking); Iowa Code
Ann. § 712.8 (threat concerning incendiary or destructive material); La. Rev. Stat. Ann. § 14:40.2 (stalking); 17-A Maine Rev. Stat. Ann. §§ 210, 210-B (terrorizing and domestic violence terrorizing); Mass.
Gen. Laws Ann. Ch. 275, § 2 (complaint of threat to
commit crime); Mich. Comp. Laws Ann. §§ 750.411h,
750.411i (stalking and aggravated stalking); Mich.
Comp. Laws Ann. § 600.2950a(3)(b) (protection order); Mont. Code Ann. § 45-5-203 (intimidation); Or.
Rev. Stat. Ann. § 30.866(1) (protective order); Tex.
Gianna Melillo, Majority of Americans Report Seeing Online
Threats of Violence Based on Race, Gender or Sexuality, The Hill
(Nov. 28, 2022), https://bit.ly/3m8E3Ta.
11
16
Fam. Code § 71.004 (family violence);12 Va. Code Ann.
§ 18.2-60(A)(1) (threats of bodily harm and death, including on school property); Va. Code Ann. § 18.2-60.1
(threat to Governor and his or her family); Wis. Stat.
Ann. § 947.01(1) (disorderly conduct); Wyo. Stat. Ann.
§ 6-6-103(b) (non-anonymous threats via telephone,
electronic medium, or in writing).13
These statutes have largely withstood First
Amendment challenges. The majority of state courts
to have considered the question—15 in addition to the
Colorado Supreme Court—have held that statements
qualify as true threats when they satisfy an objective
This statute prohibits both intentional conduct and “threat[s]
that reasonably place[ ] the [family] member in fear of imminent
physical harm.” Tex. Fam. Code § 71.004.
12
Four of these statutes refer to intentional, knowing, or purposeful conduct, but the relevant state court has held that these
provisions require a showing of general intent (i.e., an intent to
speak) and not of a specific mental state as to statement’s threatening nature or effects (i.e., an intent to threaten). See State v.
Neuzil, 589 N.W.2d 708, 712 (Iowa 1999); State v. Terrio, No. 19K-90, 2019 WL 1285288, *3 (La. Ct. App. Mar. 20, 2019); SP v.
BEK, 981 N.W.2d 500, 509 (Mich. 2021); People v. Herzberg, No.
265546, 2007 WL 839375, *1 (Mich. Ct. App. Mar. 20, 2007); Holcomb v. Commonwealth, 709 S.E.2d 711, 714 (Va. App. Ct. 2011).
Three other statutes require that an individual knew or should
have known that a reasonable person would perceive the statement as a threat, but the state courts have held that those provisions are satisfied by proof under an objective standard. See
Coleman v. United States, 202 A.3d 1127, 1143 (D.C. 2019); State
v. McCarthy, 101 P.3d 288, 299 (Mont. 2004) (citing State v.
Lance, 721 P.2d 1258, 1267 (Mont. 1986) (intent is evaluated under objective standard)); In re A.S., 626 N.W.2d 712, 720 (Wis.
2001); see id. at 725 (Bablitch, J., concurring) (statute does not
require intent to threaten).
13
17
standard, reasoning that this standard provides a sufficient safeguard for protected speech while allowing
the States to reach statements that by their very utterance can inflict harm. Colorado Br. in Opp’n 1517.14 By contrast, only nine state courts have concluded that the First Amendment requires a hybrid
subjective mental standard. Id. at 17. An objective
standard, therefore, has been widely embraced by
States across the nation—including their legislatures
and courts—to protect their residents.
3. Accepting petitioner’s view would carry serious practical consequences because it would call these
statutes and decisions into question. The objective
standard is an important tool for the States to protect
their residents from threats of violence that, while indisputably harmful, a subjective standard cannot always reach—both because the requisite mental state
cannot necessarily be proven and because these statements inflict harm by their very utterance, regardless
of the speaker’s mental state. The States, moreover,
use objective standards in enacting civil laws as well
as criminal laws, so holding that a subjective standard is always required would inhibit their ability to
At least two other state courts have suggested that an objective standard is consistent with the First Amendment. See People v. Lagano, 39 N.Y.3d 108, 112 (2022) (“A ‘true threat’ is one
that a reasonable person in the victim’s position would consider
to be an unequivocal statement of intended physical harm.”);
Hodson v. State, No. 50759, 2009 WL 1424492, *1 (Nev. Jan. 8,
2009) (table) (assessing “circumstances” in which threat was
made, and not mentioning mental state as to statement’s threatening nature and effect, when determining whether statement
constituted true threat).
14
18
protect their residents in a wide range of circumstances. See Elonis, 575 U.S. at 748 (Alito, J., concurring in part and dissenting n part) (citing both criminal and civil cases when discussing scope of true
threats exception); Haughwout v. Tordenti, 211 A.3d
1, 9 (Conn. 2019) (recognizing “true threats doctrine
has equal applicability in civil and criminal cases”).
Three categories of examples demonstrate the importance of the objective standard for state efforts to
protect their residents from threats of violence and
their attendant harms.
First, an objective standard has enabled the
States to protect their students—as well as school
staff and parents—from the fear, disruption, and violence that can follow from threatened school shootings. “[M]ass, systematic school-shootings” have unfortunately “become painfully familiar in the United
States.” Ponce v. Socorro Indep. Sch. Dist., 508 F.3d
765, 771 (5th Cir. 2007). Threats of violence often
forecast these attacks: as the Director of the Illinois
Emergency Management Agency explained, “In almost every case involving a mass school shooting
there was someone, usually a fellow student, who had
some advance warning or reason to believe that violence was possible.”15 And even when these threats
Press Release, Ready Illinois, State of Illinois Launches New
School Safety Initiative, Safe2Help Illinois (Oct. 20, 2021),
https://bit.ly/3lFvijN (internal quotations omitted). As part of
their comprehensive efforts to identify threats of violence, many
States, including Illinois, have launched confidential platforms
for students to report such threats. Ibid.; see Sophie Quinton,
To Prevent Suicides and School Shootings, More States Embrace
15
19
are not followed by physical violence, they disrupt
school operations, waste law enforcement resources,
and traumatize students and school staff alike.16
The States have responded to the increase in
school shootings by using an objective standard to
prove—and act based on—threats of such shootings.
For instance, in Haughwout, 211 A.3d 1, a former college student sued his university, complaining that the
university violated his First Amendment rights because it expelled him after he stated that “[he] should
just shoot up this school,” told another student that
he was “first on his hit list,” “wondered aloud how
many rounds he would need to shoot people at the
school,” and made hand gestures in the shape of a gun
at others. Id. at 4, 10 (internal quotations omitted).
The student who reported these statements acknowledged that they were made “jokingly” but was nevertheless “afraid for everyone’s safety.” Id. at 4 (internal quotations omitted). The Connecticut Supreme
Court rejected the plaintiff’s challenge, holding that a
reasonable person would have understood the statements as threats. Id. at 572, 576-577. The court was
undeterred by the plaintiff’s contention that he lacked
a specific intent to threaten his classmates, explaining that the First Amendment does not require a
Anonymous Tip Lines,
https://bit.ly/2EWA7vv.
Stateline
(Mar.
16,
2018),
Monica Velez, Real or Not, Threats of Violence Have Serious
Consequences in Seattle Schools, The Seattle Times (Jan. 31,
2022), https://bit.ly/3EN5dFF; Marshall, supra note 7.
16
20
showing of a specific intent to threaten. Id. at 567
n.12, 572.
Other States have likewise successfully relied on
an objective standard to protect their students and educators following threats of school violence. See, e.g.,
Commonwealth v. Milo M., 740 N.E.2d 967, 969-970
(Mass. 2001) (objective standard satisfied where student offered drawing of him killing teacher to depicted
teacher); In re Kyle M., 27 P.3d 804, 808-809 (Ariz. Ct.
App. 2001) (student’s statements met objective standard where he told classmate about his “hit list” and
plan to “kill two students in a ‘Columbine thing,’” and
said that she should “keep quiet” about that conversation or he would kill her). But where courts have
applied a subjective standard, they have overturned
adjudications based on statements threatening school
violence—including statements that “everyone should
just die” coupled with a desire to “beat the record of
19” shortly after the Parkland, Florida school shooting. Int. of: J.J.M., 265 A.3d 246, 249-250, 273 (Pa.
2021); see also Roberts v. State, 78 S.W.3d 743, 744,
746 (Ark. Ct. App. 2002) (student’s “‘Hit List (To
Shoot List),’” which was written in school notebook
and included names of 19 classmates, was insufficient
to show speaker had purpose of terrorizing others).
Second, the States have used an objective standard to protect their residents from threats of domestic
violence. Threats of violence are a “strong” predictor
of domestic abuse, and the threats themselves “often
21
exacerbate[ ] the effects of prior abuse,” causing “serious chronic mental health consequences.”17 Many
Americans experience such threats, which are
“among the most favored weapons of domestic abusers” and have become “more commonplace” with “the
rise of social media.” Elonis, 575 U.S. at 748 (Alito,
J., concurring in part and dissenting in part).18
Employing an objective standard, rather than a
subjective one, is often important for protecting victims in these situations. For one, a subjective standard “limit[s] access of many victims to civil protection
orders.”19 “Multiple studies have shown that protection orders are effective at eliminating or markedly
decreasing abuse.”20 But domestic abuse victims
struggle to furnish the necessary evidence to obtain
these orders for a range of reasons—from feeling
shame or apprehension in sharing “intimate details
Jessica Miles, Straight Outta SCOTUS: Domestic Violence,
True Threats, and Free Speech, 74 Univ. of Miami L. Rev. 711,
735 (2020); see Joanne Belknap et al., The Roles of Phones and
Computers in Threatening and Abusing Women Victims of Male
Intimate Partner Abuse, 19 Duke J. Gender L. & Pol’y 373, 378
(2012) (“[T]hreats of violence by former partners who are currently stalking are an even better predictor of future violence
than the prior violence used by these ex-partners.”).
17
See Leemis, supra note 10, at 24-25 (As of May 2017, an estimated 41 million Americans had received threats of violence
from an intimate partner during their lifetimes.).
18
19
Miles, supra note 17, at 718.
Jane K. Stoever, Access to Safety and Justice: Service of Process in Domestic Violence Cases, 94 Wash. L. Rev. 333, 352
(2019).
20
22
regarding the relationship and sexual assaults, physical abuse, and emotional harms he or she suffered,”
to fears about testifying in front of their abusers.21
Requiring victims to also prove their abusers’ subjective mental state increases the burdens that they already face in obtaining these orders, which can be lifesaving.22 Many States have responded to these obstacles by deciding not to require victims to prove their
abusers’ mental state to obtain a protective order, so
long as they can show that the abusers’ statements
could reasonably be perceived as a serious threat of
violence.23
An objective standard also facilitates the States’
ability to prosecute domestic abusers for their
threats—and thereby protect victims from further
threats and from physical violence—because it focuses the inquiry on the harm to the victim. In the
amici States’ experience, requiring proof that a
speaker intended or knew the threatening nature of
the statement, or uttered it with reckless disregard to
its effects, is particularly problematic in domestic violence prosecutions because the speaker’s mental
state in this context can “always be shielded.” State
Jane K. Stoever, Transforming Domestic Violence Representation, 101 Ky. L.J. 483, 533 (2013).
21
22
Miles, supra note 17, at 744-746.
Id. at 743-744; see Soraya Chemaly & Mary Anne Franks,
Supreme Court May Have Made Online Abuse Easier, Time
(June 3, 2015), https://bit.ly/40Fu8mV (imposing subjective
standard for true threats could “undo[ ] years of legislative progress, especially at the state level, to increase protections for victims of domestic violence” through civil protection order process)
(internal quotations omitted).
23
23
v. Terrio, No. 19-K-90, 2019 WL 1285288, *4 (La. Ct.
App. Mar. 20, 2019) (internal quotations omitted).
Abusers routinely offer alternative explanations for
their threats—which they may genuinely believe or
offer to obscure their true purpose. For instance, they
often maintain that their threatening statements
were simply born out of love and concern for their
partner, State v. Neuzil, 589 N.W.2d 708, 712 (Iowa
1999), that their statements were innocuous self-expression or means of releasing frustration, Holcomb
v. Commonwealth, 709 S.E.2d 711, 715-716 (Va. App.
Ct. 2011); State v. Heffron, 190 A.3d 232, 234, 236
(Me. 2018); or that the victim’s hesitancy to report
those statements demonstrates that the statements
were not intended to be threatening, Wittig v. Hoffart,
704 N.W.2d 415, 421 (Wisc. Ct. App. 2005). But these
explanations offer no solace to domestic abuse victims, who are harmed by the very utterance of such
statements. See Elonis, 575 U.S. at 748 (Alito, J., concurring in part and dissenting in part) (noting that, in
domestic violence context, “[a] fig leaf of artistic expression cannot convert such hurtful, valueless
threats into protected speech”). For these reasons, an
objective standard is, in the amici States’ experience,
important to their efforts to protect their residents
from the harms associated with threats of domestic
violence.
Third, the States rely on an objective standard to
protect their residents from threats of hate crimes.
The number of reported hate crimes—violence
against individuals based on characteristics such as
race or religion—in the United States has increased
dramatically in recent years, rising 11.6% between
24
2020 and 2021.24 Threats of violence often precede
attacks by the speaker, and they can also incite others
to engage in violence.25 And even when the threats
are not carried out, they may silence the victims and
cause them to “withdraw[ ] from public life.”26
Threats to commit hate crimes, moreover, affect not
only their subjects; they may “threaten and intimidate an entire community.”27
Requiring the States to prove a speaker’s mental
state as to his statement’s threatening nature and effects would undermine the States’ ability to protect
their residents from hate crimes. If a subjective
standard were required, then the Chicago resident
who yelled to a rabbi in a Jewish school’s courtyard
that he would “burn” them “in a gas oven”—while performing a Nazi march and chanting “Heil Hitler”—
could escape criminal liability by testifying that he
did not intend to hurt or scare anyone.28 Or the
Press Release, Department of Justice, Office of Public Affairs,
Associate Attorney General Vanita Gupta Issues Statement on the
FBI’s Supplemental 2021 Hate Crime Statistics (Mar. 13, 2023),
https://bit.ly/3yC9KqP; see Joe Hernandez, Hate Crimes Reach
the Highest Level in More Than a Decade, NPR (Sept. 1, 2021),
https://n.pr/3mdUfm7.
24
25
Citron, supra note 6, at 1447-1448.
26
Id. at 1448-1450.
Report Hate Crimes to the FBI, FBI, https://bit.ly/3Zzs3st (accessed Mar. 30, 2023).
27
Matt Masterson, Man Facing Hate Crime Charges Allegedly
Threatened to ‘Burn’ Rabbi ‘In a Gas Oven’ During Confrontation
Outside Jewish High School, WTTW News (Dec. 13, 2022),
https://bit.ly/3JNHqsf (internal quotations omitted).
28
25
woman who, while armed with a knife, uttered “‘I will
kill you; you have coronavirus; go back to China’” to
an Asian-American individual living in the District of
Columbia could hide behind an insistence that she
was merely voicing frustration caused by the Covid19 pandemic.29 Whomever the victim—and whatever
their targeted characteristic—the States would lose a
powerful tool for protecting their residents and their
communities from the damaging effects of hate-based
threats.
4. As these examples illustrate, the availability
of an objective standard is important to the States’ efforts to protect their residents from the harms associated with threats of violence, which include not only
the threatened violence but also injuries caused by
the statements’ “very utterance.” Virginia, 538 U.S.
at 359-360 (internal quotations omitted).
Petitioner nevertheless contends that an objective standard raises First Amendment concerns because it would chill protected speech. See Pet. Br.
§ II. But that concern is misplaced because it relies
on a misunderstanding of how an objective standard
operates. Objective assessments account for “the entire factual context” in which the threat is made.
State v. Taveras, 271 A.3d 123, 129 (Conn. 2022) (internal quotations omitted). By examining the entire
context, courts can ensure that “statements that seek
Press Release, Department of Justice, U.S. Attorney’s Office,
District Woman Sentenced to Prison for Hate Crime Targeting
Member of the Asian Community (June 9, 2021),
https://bit.ly/3Ye6fS3.
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26
to communicate a belief or idea, such as political hyperbole or a mere joke”—or other statements that enjoy First Amendment protection—are shielded from
penalty. Ibid. (internal quotations omitted). As a result, and contrary to petitioner’s suggestion, Pet. Br.
31, statements about violence do not automatically
qualify as true threats under an objective standard.
Instead, courts routinely conclude that, given the context, a reasonable person would not interpret a statement to be a serious expression of an intent to cause
violence. See, e.g., Citizen Publishing Co. v. Miller,
115 P.3d 107, 109, 115 (Ariz. 2005) (letter to editor
suggesting execution of Muslims to stop Iraq war was
“plainly political message,” not true threat, under objective standard); People ex rel. C.C.H., 651 N.W.2d
702, 707 (S.D. 2002) (statement that student wanted
to kill another student did not qualify as true threat
under objective standard); In re Douglas D., 626
N.W.2d 725, 731, 742 (Wis. 2001) (story stating that
student would behead teacher if he was disciplined
did not qualify as true threat under objective standard); State v. Kohonen, 370 P.3d 16, 19, 23 (Wash.
App. Ct. 2016) (speaker’s statements that he intended
to punch another person, and that the person “must
die,” were not true threats under objective standard).
Indeed, in the seminal true threats case, Watts v.
United States, 394 U.S. 705 (1969), this Court implemented an objective, context-driven inquiry to identify and protect political speech that appeared at first
blush to constitute a serious threat of violence. The
petitioner was convicted under a statute prohibiting
certain threats to harm or kill the President after he
stated, at a political rally during the Vietnam War, “If
27
they ever make me carry a rifle the first man I want
to get in my sights is L.B.J.” Id. at 705-706 (internal
quotations omitted). This Court reversed his conviction, concluding that his statement was protected political hyperbole rather than an unprotected true
threat. Id. at 708. In reaching that conclusion, this
Court assessed the statement’s “context” (a political
rally, at which speech is often “vituperative” and “inexact”), its “expressly conditional nature,” and the “reaction of the listeners” (laughter). Id. at 707-708. It
did not examine the petitioner’s mental statement as
to the statement’s threatening nature and effects, apparently finding that question unnecessary to separate true threats from protected speech. The objective
approach is thus grounded in this Court’s precedent,
as well as a significant—but not limitless—tool for the
States to further their important interests in safeguarding the public health and safety while preserving free speech protections.
5. Petitioner also emphasizes that some States
utilize a subjective standard when regulating threats
in certain contexts. Pet. Br. 40. But that policy choice
has no bearing on the question presented here, which
concerns the floor established by the Constitution, not
whether the States may choose to exceed it.
For one, as a matter of policy, the States may
choose to require proof of a speaker’s subjective mental state as to the statement’s nature and effects for
some crimes but not others. As one example, Michigan does not require proof of the speaker’s subjective
intent to threaten for stalking, Mich. Comp. Laws
28
Ann. § 750.411h, but it does require proof of subjective intent for cyberbullying, Mich. Comp. Laws Ann.
§ 750.411x. Through this policy choice, the State has
exceeded the First Amendment’s floor to address concerns that speech over the internet can be misunderstood, see Pet. Br. 31-34, while recognizing the need
for an objective standard to protect victims of in-person stalking.
Similarly, the States may demand proof of a subjective mental state as to a statement’s threatening
nature and effect for gradations of a crime that carry
harsher penalties but not for gradations that carry
lesser penalties. Alabama, for instance, requires
proof of “intent to place [the victim] in reasonable fear
of death or serious bodily harm” to convict for stalking
in the first degree (a felony), but not to convict for
stalking in the second degree (a misdemeanor). Cf.
Ala. Code 1975, § 13A-6-90(a) (first-degree stalking)
with Ala. Code 1975, § 13A-6-90.1(a) (second-degree);
see also Ark. Code Ann. § 5-71-229 (second-degree
stalking requires proof of intent to place victim in
fear, but third-degree stalking does not).
Some States also take a similar approach when
imposing civil and criminal liability for the same underlying conduct—i.e., using an objective standard for
civil liability and a subjective standard for criminal
liability. As one example, Oregon requires proof that
a defendant “knowingly alarm[ed]” the victim for a
conviction under its criminal stalking statute, but it
does not require this same subjective showing for an
individual to obtain a protective order under its civil
29
no-stalking statute, which assesses whether an objectively reasonable person would have felt alarmed.
Delgado v. Souders, 46 P.3d 729, 737 (Or. 2002) (comparing Or. Rev. Stat. Ann. § 163.732(1) with Or. Rev.
Stat. Ann. § 30.866(1)) (internal quotations omitted);30 compare Tex. Penal Code § 25.07(a)(2) (requiring showing of intent to threaten family violence for
criminal conviction) with Tex. Fam. Code § 71.004(1)
(providing threat of family violence that satisfies objective standard is sufficient for civil liability).
The States thus have a range of policy reasons for
using subjective standards for penalizing threats of
violence, and their decisions to do so say nothing
about the constitutional floor required by the First
Amendment. Indeed, the States have recognized as
much by shifting from subjective to objective standards based on their practical experience. For instance, in 2001, Louisiana’s legislature amended that
State’s stalking statute to remove the requirement
that the offender have intended to place his victim in
fear of death or bodily harm and instead to require
only a showing of general intent to act. Terrio, No.
19-K-90, 2019 WL 1285288, *3 (discussing La. Rev.
Stat. Ann. § 14:40.2(A) (1999)). The legislature
“shift[ed] the focus from the offender’s intentions to
the perceptions of the victim,” because the offender’s
intent “can always be shielded” and is, at any rate,
Like Colorado’s criminal stalking statute, Colo. Rev. Stat.
§ 18-3-602(1), Oregon’s civil stalking statute also requires proof
of the victim’s fear and of the defendant’s mental state as to the
act, i.e., the defendant intentionally, knowingly, or recklessly
made unwanted contact, Or. Rev. Stat. Ann. § 30.866(1).
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“immaterial” to whether the threats caused the victims alarm or emotional distress. Id. at *4 (internal
quotations omitted). Other States have, likewise, removed requirements of a subjective intent to threaten
from their criminal statutes where circumstances
warranted. See, e.g., In re Kyle M., 27 P.3d at 807808 (discussing Arizona legislature’s decision to replace “‘intent to terrify’” requirement in threat statute
with objective standard). Petitioner’s view would constrain the States’ discretion, which they have long exercised, to make these policy choices.
***
True threats constitute a “limited area” of speech
that do not enjoy First Amendment protection because they play “no essential part of any exposition of
ideas.” R.A.V., 505 U.S. at 383, 385 (cleaned up). Instead, threats of violence impair the lives of state residents in many serious ways—tangible and intangible—and thus the States have always been permitted
to regulate them. And the States have always understood the First Amendment to permit them to do so
without requiring proof of a subjective mental state
as to the statement’s threatening nature and effects,
which can stymie their efforts to protect even their
most vulnerable residents. Holding otherwise would
unsettle centuries of historical practice and thwart
crucial state efforts to ensure that their residents do
not suffer the fear, disruption, and physical violence
that undisputedly flow from threats of violence.
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CONCLUSION
The decision below should be affirmed.
Respectfully submitted,
* Counsel of Record
MARCH 2023
KWAME RAOUL
Attorney General
State of Illinois
JANE ELINOR NOTZ*
Solicitor General
ALEX HEMMER
Deputy Solicitor General
PRIYANKA GUPTA
Assistant Attorney General
100 West Randolph Street
Chicago, Illinois 60601
(312) 814-5376
Jane.Notz@ilag.gov
TREG TAYLOR
Attorney General
State of Alaska
KRIS MAYES
Attorney General
State of Arizona
PATRICK J. GRIFFIN
Chief State’s Attorney
State of Connecticut
32
BRIAN L. SCHWALB
Attorney General
District of Columbia
KATHLEEN JENNINGS
Attorney General
State of Delaware
ANNE E. LOPEZ
Attorney General
State of Hawaii
BRENNA BIRD
Attorney General
State of Iowa
AARON M. FREY
Attorney General
State of Maine
ANDREA JOY CAMPBELL
Attorney General
Commonwealth of Massachusetts
DANA NESSEL
Attorney General
State of Michigan
LYNN FITCH
Attorney General
State of Mississippi
AARON D. FORD
Attorney General
State of Nevada
33
JOHN M. FORMELLA
Attorney General
State of New Hampshire
MATTHEW J. PLATKIN
Attorney General
State of New Jersey
RAÚL TORREZ
Attorney General
State of New Mexico
JOSHUA H. STEIN
Attorney General
State of North Carolina
DAVE YOST
Attorney General
State of Ohio
ELLEN F. ROSENBLUM
Attorney General
State of Oregon
MICHELLE A. HENRY
Attorney General
Commonwealth of Pennsylvania
MARTY JACKLEY
Attorney General
State of South Dakota
JONATHAN SKRMETTI
Attorney General & Reporter
State of Tennessee
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SEAN D. REYES
Attorney General
State of Utah
CHARITY R. CLARK
Attorney General
State of Vermont
JASON S. MIYARES
Attorney General
Commonwealth of Virginia
BRIDGET HILL
Attorney General
State of Wyoming
35
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.