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,

The People of the State of Colorado,

Respondent.

_________________________________________________

On Writ of Certiorari to the

Colorado Court of Appeals, Division II

_________________________________________________

BRIEF OF THE LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW AND NATIONAL

WOMEN’S LAW CENTER AS AMICI CURIAE IN

SUPPORT OF RESPONDENT

_________________________________________________

Damon Hewitt*

Anthony D. Mirenda

Jon Greenbaum

Matthew Casassa

Dariely Rodriguez

FOLEY HOAG LLP

Seaport West

David Brody

155 Seaport Blvd.

Counsel of Record

Boston, MA 02210

Marc Epstein

(617) 832-1000

LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS

UNDER LAW

James M. Gross

1500 K St. NW, Ste. 900

Fernando Berdion-Del Valle

Washington, DC 20005

FOLEY HOAG LLP

dbrody@lawyerscommittee.org 1301 Ave. of the Americas

New York, NY 10019

(202) 662-8600

(212) 812-4000

* Admitted in Pennsylvania only.

Practice limited to matters before

federal courts.

Counsel for Amici Curiae

TABLE OF CONTENTS

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

INTERESTS OF THE AMICI CURIAE ..................... 1

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

ARGUMENT ............................................................... 5

A subjective intent requirement would

frustrate enforcement of civil rights laws

protecting Black people and other people of

color from threats and intimidation .............. 5

A. Congress passed major civil rights laws

shortly after abolition in large part to

protect Black people against threats.......6

B. Congress specifically intended to remove

a mens rea requirement when enacting

the anti-intimidation provision of the

Voting Rights Act, which continues to be

an essential protection against voter

intimidation..............................................7

C. Numerous other federal and state civil

rights statutes prohibit threats without

requiring subjective intent .................... 11

II.

Online threats cause substantial harm and

chill the free expression of impacted

individuals .................................................... 13

A. Online threats chill free speech ............. 14

B. A subjective intent requirement would

allow individuals to escape liability for

online threats ......................................... 19

III. The true threats doctrine must balance

protecting communities against intimidation

and preventing discriminatory enforcement

of laws criminalizing threats ....................... 22

IV. Colorado’s true threats test protects Black

people and other people of color from threats

and discriminatory overenforcement .......... 25

The Court should not import a subjective

intent requirement into civil true threats

cases.............................................................. 30

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

iii

TABLE OF AUTHORITIES

Cases

303 Creative LLC v. Elenis,

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

Arizona v. Inter Tribal Council of

Arizona,

570 U.S. 1 (1983) .................................................... 1

Arizona Democratic Party v. Arizona

Repubican Party,

No. CV-16-03752-PHX-JJT, 2016

WL 8669978 (D. Ariz. Nov. 4, 2016) ...................... 9

Beaumont Chapter of the NAACP v.

Jefferson Cnty., Tex.,

Order Granting in Part and Denying

in Part Plaintiffs’ Emergency Motion

for Temporary Restraining Order,

ECF No. 14, 1:22-cv-00488-MJT

(E.D. Tex. Nov. 7, 2022) ......................................... 9

Bell v. Itawamba Cty. Sch. Bd.,

774 F.3d 280 (5th Cir. 2014) ................................ 28

Briscoe v. LaHue,

460 U.S. 325 (1983) ............................................ 6, 7

Chen Through Chen v. Albany Unified

Sch. Dist.,

56 F.4th 708 (9th Cir. 2022) .......................... 21, 27

Cohen v. California,

403 U.S. 15 (1971) ................................................ 28

D.C. v. R.R.,

106 Cal. Rptr. 3d 399 (Cal. Ct. App.

2010), as modified (Apr. 8, 2010)......................... 21

Daschle v. Thune,

Temporary Restraining Order, Civ.

04-4177 (D.S.D. Nov. 2, 2004),

https://www.brennancenter.org/sites/

default/files/202007/2004%20Daschle%20TRO.pdf .......................... 9

Dumpson v. Ade,

No. CV 18-1011 (RMC), 2019 WL

3767171 (D.D.C. Aug. 9, 2019) ............ 1, 12, 13, 29

Elonis v. United States,

575 U.S. 723 (2015) ............................ 28, 29, 31, 33

Evans v. Tubbe,

657 F.2d 661 (5th Cir. 1981) .................................. 6

Gersh v. Anglin,

353 F. Supp. 3d 958 (D. Mont. 2018)................... 13

Gonzalez v. Google LLC,

143 S.Ct. 80 (2022) ................................................. 1

Griffin v. Breckenridge,

403 U.S. 88 (1971) .................................................. 7

Haughwout v. Tordenti,

211 A.3d 1 (Conn. 2019) ....................................... 25

Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968) ................................................ 6

Kansas v. Boettger,

140 S. Ct. 1956 (2020) .......................................... 31

Kansas v. Hendricks,

521 U.S. 346 (1997) .............................................. 33

League of United Latin Am. Citizens Richmond Region Council 4614 v.

Pub. Int. Legal Found.,

No. 1:18-CV-00423, 2018 WL

3848404 (E.D. Va. Aug. 13, 2018) ......... 7, 9, 10, 27

N.A.A.C.P. v. Claiborne Hardware Co.,

458 U.S. 886 (1982) .............................................. 28

Nat’l Coal. on Black Civic Participation

v. Wohl,

498 F. Supp. 3d 457 (S.D.N.Y. 2020) ......... 3, 21, 28

Nat’l Coal. on Black Civic Participation

v. Wohl,

No. 20-cv-8668, 2023 WL 2403012

(S.D.N.Y. Mar. 8, 2023)................ 1, 7, 9, 20, 27, 29

New York Times Co. v. Sullivan,

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

Paynes v. Lee,

377 F.2d 61 (5th Cir. 1967) .................................... 7

People ex rel. R.D.,

464 P.3d 717 (Col. 2020) ........ 25, 26, 27, 28, 29, 30

Perez v. Florida,

137 S. Ct. 853 (2017) ................................ 30, 31, 32

Ruan v. United States,

142 S. Ct. 2370 (2022) .................................... 32, 33

Shaare Tefila Congregation v. Cobb,

481 U.S. 615 (1987) ................................................ 6

Shelby Cnty., Ala. v. Holder,

570 U.S. 529 (2013) ................................................ 1

Sines v. Kessler,

324 F. Supp. 3d 765 (W.D. Va. 2018) .................... 7

Students for Fair Admissions, Inc. v.

Univ. of N. Carolina,

142 S. Ct. 896 (2022) .............................................. 1

Torres v. Lynch,

578 U.S. 452 (2016) .............................................. 32

U.S. by Katzenbach v. Original Knights

of Ku Klux Klan,

250 F. Supp. 330 (E.D. La. 1965) .......................... 9

United Bhd. of Carpenters & Joiners of

Am., Loc. 610, AFL-CIO v. Scott,

463 U.S. 825 (1983) ................................................ 6

United States v. Bagdasarian,

652 F.3d 1113 (9th Cir. 2011) .............................. 31

United States v. Heineman,

767 F.3d 970 (10th Cir. 2014) .............................. 31

United States v. Nguyen,

673 F.3d 1259 (9th Cir. 2012) .............................. 27

vii

Vietnamese Fishermen’s Ass’n v.

Knights of Ku Klux Klan,

518 F. Supp. 993 (S.D. Tex. 1981) ..................... 6, 7

Virginia v. Black,

538 U.S. 343 (2003) ............................ 4, 6, 8, 26, 31

Watts v. United States,

394 U.S. 705 (1969) .............................. 2, 27, 30, 31

Whatley v. City of Vidalia,

399 F.2d 521 (5th Cir. 1968) .................................. 9

Willingham v. Cnty. of Albany,

593 F. Supp. 2d 446 (N.D.N.Y. 2006) .................... 9

Wong v. Mangone,

450 F. App’x 27 (2d Cir. 2011) ............................... 6

Woods-Drake v. Lundy,

667 F.2d 1198 (5th Cir. 1982) ................................ 6

Statutes

18 U.S.C. § 875(c) ...................................................... 33

42 U.S.C. § 1981 .......................................................... 6

42 U.S.C. § 1982 .......................................................... 6

42 U.S.C. § 1985 .......................................................... 7

42 U.S.C. § 3617 ........................................................ 11

52 U.S.C. § 10101 ........................................................ 8

52 U.S.C. § 10307(b) ................................................ 2, 9

viii

Cal. Civ. Code § 52.1 ................................................. 12

D.C. Code § 2-1402.61 ......................................... 12, 13

D.C. Code § 2-1402.62 ............................................... 13

Md. Code Ann., State Gov’t § 20-708 ........................ 11

Mont. Code Ann. § 27-1-1503 .................................... 13

Wash. Rev. Code Ann. § 49.60.2235 ......................... 11

Other Authorities

39th Ring Carlson & Haley Witt, Online

Harassment of U.S. Women

Journalists and its Impact on Press

Freedom (Oct. 10, 2022),

https://firstmonday.org/ojs/index.php

/fm/article/view/11071/9995 ................................. 19

Alan Feuer, “I Don’t Want to Die for It”:

School Board Members Face Rising

Threats, N.Y. Times (Nov. 5, 2021),

https://www.nytimes.com/2021/11/05

/us/politics/school-board-threats.html ................. 11

Alvin Thomas, Online Racial

Harassment Leads to Lower

Academic Confidence for Black and

Hispanic Students, The

Conversation (Jan. 23, 2023),

https://theconversation.com/onlineracial-harassment-leads-to-loweracademic-confidence-for-black-andhispanic-students-197515 .................................... 17

Amanda Lenhart, Online Harassment,

Digital Abuse, and Cyberstalking,

Data & Soc’y Rsch. Inst. (Nov. 21,

2016),

https://www.datasociety.net/pubs/oh/

Online_Harassment_2016.pdf ............................. 18

Amnesty Int’l, Troll Patrol Findings,

https://decoders.amnesty.org/projects

/troll-patrol/findings ............................................. 15

Anti-Defamation League & Ctr. for

Tech. & Soc’y, Online Hate and

Harassment: The American

Experience 2022 (June 20, 2022),

https://www.adl.org/sites/default/file

s/pdfs/2022-09/Online-Hate-andHarassment-Survey-2022.pdf.............................. 14

Ashley Nellis, The Color of Justice:

Racial and Ethnic Disparity in State

Prisons, Justice: Racial and Ethnic

Disparity in State Prisons, The

Sentencing Project (Oct. 13, 2021),

https://www.sentencingproject.org/re

ports/the-color-of-justice-racial-andethnic-disparity-in-state-prisons-thesentencing-project/ ............................................... 23

Benenson Strategy Grp., The Brennan

Center for Justice: Local Election

Officials Survey (June 16, 2021),

https://www.brennancenter.org/ourwork/research-reports/local-electionofficials-survey-june-2021 .................................... 10

Candice Norwood, More Black Women

Are Being Elected to Office. Few Feel

Safe Once They Get There, PBS

NewsHour (July 17, 2021),

https://www.pbs.org/newshour/politic

s/more-black-women-are-beingelected-to-office-few-feel-safe-oncethey-get-there ....................................................... 16

CISA Election Security Warns of the

Impact of Threats to Poll

Workers, CBS News (Sept. 12, 2022),

https://www.cbsnews.com/video/cisaelection-chief-warns-of-workforceproblem-due-to-threats-to-pollworkers/ ................................................................ 10

Cong. Globe, 39th Cong., 1st Sess., 474 ..................... 6

Dhanaraj Thakur et al., An

Unrepresentative Democracy: How

Disinformation and Online Abuse

Hinder Women of Color Political

Candidates in the United States, Ctr.

For Democracy & Tech. (Oct. 27,

2022), https://cdt.org/insights/anunrepresentative-democracy-howdisinformation-and-online-abusehinder-women-of-color-politicalcandidates-in-the-united-states/ ..................... 4, 15

Drew Desilver et al., 10 Things We

Know About Race and Policing in the

U.S., Pew Rsch. Ctr. (June 3, 2020),

https://www.pewresearch.org/facttank/2020/06/03/10-things-we-knowabout-race-and-policing-in-the-u-s ...................... 23

Emily A. Vogels, The State of Online

Harassment, Pew Rsch. Ctr. (Jan.

13, 2021),

https://www.pewresearch.org/interne

t/2021/01/13/the-state-of-onlineharassment/ ...................................... 3, 4, 14, 15, 16

Equal Justice Initiative, Lynching in

America: Confronting the Legacy of

Racial Terror (3d ed. 2017),

https://lynchinginamerica.eji.org/rep

ort/ .......................................................................... 8

Equal Justice Initiative, Persecution of

Civil Rights Activists (Jan. 1, 2014),

https://eji.org/news/history-racialinjustice-persecution-of-civil-rightsactivists/ ............................................................... 24

George Veletsianos et al., Women

Scholars’ Experiences with Online

Harassment and Abuse: SelfProtection, Resistance, Acceptance,

and Self-Blame (2018),

https://www.veletsianos.com/wpcontent/uploads/2011/07/harassment

_coping_postPrint.pdf .......................................... 17

xii

H.R. Rep. No. 89-439 (1965) as

reprinted in 1965 U.S.C.C.A.N. 2437, ................... 9

Hearing on the Voting Rights Act of

1965 Before the H. Comm. on the

Judiciary, 89th Cong. 12 (1965),

https://www.justice.gov/sites/default/

files/ag/legacy/2011/08/23/03-181965.pdf ......................................................... 3, 8, 9

Hum. Rts. Campaign, LGBTQ+ Voting

Barriers: Results from the 2019

LGBTQ+ Voter Experience Study

(Feb. 11, 2022),

https://www.hrc.org/resources/lgbtqvoting-barriers-results-from-the2019-lgbtq-voter-experience-study ...................... 10

James Byrd Jr. Center to Stop Hate at

the Lawyers’ Committee for Civil

Rights Under Law, Hate in Elections

(Sept. 2020),

https://lawyerscommittee.org/wpcontent/uploads/2020/09/LC2_HATEIN-ELECTIONS_RPT_E_HIGH1.pdf ...................................................................... 18

Jason Guerrasio, ‘Star Wars’ actress

Kelly Marie Tran Left Social Media

After Racist and Sexist Trolls Drove

Her to Therapy, Insider (Mar. 3,

2021), https://www.insider.com/kellymarie-tran-racist-sexist-trolls-socialmedia-2021-3 ........................................................ 18

xiii

Julie Posetti & Nabeelah Shabbir, The

Chilling: A Global Study of Online

Violence Against Women Journalists,

Int’l Ctr. for Journalists (Nov. 2022),

https://www.icfj.org/sites/default/files

/202211/ICFJ_UNESCO_The%20Chilling_

2022_1.pdf ............................................................ 19

Kalyani Chadha et al., Women’s

Responses to Online Harassment, 14

Int’l J. Commc’ns 239 (2020) ............................... 17

Karen J. Pita Loor, An Argument

Against Unbounded Arrest Power:

The Expressive Fourth Amendment

and Protesting While Black, 120

Mich. L. Rev. 1581 (2022) .................................... 24

Keegan Hankes, Eye of the Stormer, S.

Poverty L. Ctr. (Feb. 9, 2017),

https://www.splcenter.org/fightinghate/intelligence-report/2017/eyestormer ................................................................. 12

Kim Albarella, The Secret Language of

Emoji, Nat’l Cybersecurity All. (Oct.

2, 2018),

https://staysafeonline.org/resources/t

he-secret-language-of-emoji/ ................................ 21

xiv

Lucina Fisher & Brian McBride,

‘Ghostbusters’ Star Leslie Jones

Quits Twitter After Online

Harassment, ABC News (July 20,

2016),

https://abcnews.go.com/Entertainme

nt/ghostbusters-star-leslie-jonesquits-twitter-onlineharassment/story?id=40698459........................... 18

Maeve Duggan, Online Harassment

2017, Pew Rsch. Ctr. (July 11, 2017),

https://www.pewresearch.org/interne

t/2017/07/11/online-harassment2017-methodology/ ......................................... 16, 17

Melissa Chan, These Black Lives Matter

Protesters Had No Idea How One

Arrest Could Alter Their Lives, Time

(Aug. 19, 2020),

https://time.com/5880229/arrestsblack-lives-matter-protests-impact/ .................... 25

Meryl Kornfield et al., Swept Up By

Police, Wash. Post (Oct. 23, 2020),

https://www.washingtonpost.com/gra

phics/2020/investigations/georgefloyd-protesters-arrests/ ...................................... 24

Nat’l Fair Hous. All., 2022 Fair Housing

Trends Report (2022),

https://nationalfairhousing.org/wpcontent/uploads/2022/11/2022-FairHousing-Trends-Report.pdf ................................ 11

Nusrat Choudhury & Malkia Cyril, The

FBI Won’t Hand Over Its

Surveillance Records on ‘Black

Identity Extremists,’ so We’re Suing,

ACLU (Mar. 21, 2019),

https://www.aclu.org/news/racialjustice/fbi-wont-hand-over-itssurveillance-records-black ................................... 24

PEN Am., Online Harassment Survey:

Key Findings, https://pen.org/onlineharassment-survey-key-findings/ ........................ 15

Rachel E. Morgan & Jennifer L.

Truman, Stalking Victimization,

2019 , U.S. Dep’t of Just. (Feb. 2022),

https://bjs.ojp.gov/content/pub/pdf/sv

19.pdf .............................................................. 14, 29

Rebekah Herrick et al., Gender and

Race Differences in Mayors’

Experiences of Violence, Ctr. for Am.

Women & Politics (2022),

https://cawp.rutgers.edu/research/ca

wp-grants-and-awards/cawpresearch-grants/researchbriefs/gender-and-race-differencesmayors-experiences .............................................. 15

Rigel C. Oliveri, Sexual Harassment of

Low-Income Women in Housing, 83

Miss. L. Rev. 597 (2018),

https://scholarship.law.missouri.edu/

cgi/viewcontent.cgi?article=1720&co

ntext=facpubs ....................................................... 12

xvi

Samuel R. Gross et al., Race and

Wrongful Convictions in the United

States 2022, Nat’l Registry of

Exonerations (Sep. 2022),

https://www.law.umich.edu/special/e

xoneration/Documents/Race%20Repo

rt%20Preview.pdf ................................................. 23

S. Poverty L. Ctr., Fight for

Representation: Louisiana’s

Pervasive Record of Racial

Discrimination in Voting, the

Steadfast Louisianans Who Battle

Onward, & the Urgent Need to

Restore the Voting Rights Act (Aug.

16, 2021),

https://www.splcenter.org/sites/defau

lt/files/louisiana_hr_4_report_final.p

df ........................................................................... 10

INTERESTS OF THE AMICI CURIAE1

Formed in 1963, the Lawyers’ Committee for

Civil Rights Under Law is a nonpartisan, nonprofit

organization that uses legal advocacy to achieve racial

justice, fighting inside and outside the courts to

ensure that Black people and other people of color

have the voice, opportunity, and power to make the

promises of our democracy real. To that end, the

Lawyers’ Committee has frequently participated

before this Court representing parties or as amicus.

See, e.g., Gonzalez v. Google LLC, 143 S. Ct. 80 (2022);

Students for Fair Admissions, Inc. v. Univ. of N.

Carolina, 142 S. Ct. 896 (2022); 303 Creative LLC v.

Elenis, 142 S. Ct. 1106 (2022); Shelby Cnty., Ala. v.

Holder, 570 U.S. 529 (2013); Arizona v. Inter Tribal

Council of Arizona, 570 U.S.1 (2013). It is a leader on

digital justice, voting rights, and criminal justice

issues, and participates in cases combatting voter

intimidation

and

threats

targeting

Black

communities and other communities of color. The

Lawyers’ Committee has represented parties or

served as amicus in various federal court cases

involving threatening speech. See, e.g., Nat’l Coal. on

Black Civic Participation v. Wohl, No. 20-cv-8668,

2023 WL 2403012 (S.D.N.Y. Mar. 8, 2022) (“NCBCP

III”); Dumpson v. Ade, No. CV 18-1011 (RMC), 2019

WL 3767171 (D.D.C. Aug. 9, 2019).

The National Women’s Law Center fights for

gender justice—in the courts, in public policy, and in

our society—working across the issues that are

central to the lives of women and girls to change

1 Pursuant to Supreme Court Rule 37.6, counsel represent that

they authored this brief in its entirety and no one else made a

monetary contribution for it.

culture and drive solutions to the gender inequity that

shapes our society and to break down the barriers that

harm all of us—especially women of color, LGBTQI+

people, and low-income women and families.

SUMMARY OF ARGUMENT

The true threats doctrine protects people from

intimidation by ensuring that the First Amendment

does not shield threatening speech. Amici respectfully

submit this brief to detail how proper determination

of this doctrine’s scope is essential to the enforcement

of civil rights laws and to ensuring “debate on public

issues” is “uninhibited, robust, and wide open.” Watts

v. United States, 394 U.S. 705, 708 (1969).

Over the past 150 years, Congress and states

have established legal protections for Black people,

people of color, and other protected classes to defend

against threats and harassment that interfere with

their equal right to fulsome civic participation. These

regimes safeguard essential rights by deterring

discrimination and intimidation and providing

redress to victims. Individuals have relied on these

laws to protect their right to vote and to equal

opportunity in commerce, housing, and places of

public accommodations. Today, these laws continue to

protect people of color and others who face heightened

rates of threats and intimidation online and offline.

Requiring subjective intent to establish a true

threat would vitiate anti-intimidation laws, especially

voter intimidation laws. Congress specifically enacted

Section 11(b) of the Voting Rights Act of 1965, 52

U.S.C. § 10307(b), without a mens rea requirement

because prior laws were, according to Attorney

General Nicholas Katzenbach, “largely ineffective.”

Hearing on the Voting Rights Act of 1965 Before the H.

Comm. on the Judiciary, 89th Cong. 12 (1965)

(statement of Nicholas Katzenbach, Att’y Gen. of the

United

States)

(hereinafter,

“Katzenbach

Statement”). As “modern technology” allows bad

actors to reach “vastly greater population[s] … with

false and dreadful information, contemporary means

of voter intimidation may be more detrimental to free

elections than approaches taken for that purpose in

past eras, and hence call for swift and effective judicial

relief.” Nat’l Coal. on Black Civic Participation v.

Wohl, 498 F. Supp. 3d 457, 464 (S.D.N.Y. 2020)

(“NCBCP I”). Anti-intimidation provisions in other

landmark civil rights laws—the Civil Rights Act of

1866, the Ku Klux Klan Act of 1871, the Fair Housing

Act of 1968, and numerous state law corollaries—

would be more difficult to enforce if plaintiffs were

required to show subjective intent.

A subjective intent requirement would

particularly hamper the ability to combat hateful

online threats, which are often directed at Black and

Brown people. This abuse has become a deleterious

and disgraceful norm of online life. While using the

internet, 25% of adults in this country have

experienced stalking, physical threats, sustained

harassment, or sexual harassment. Emily A. Vogels,

The State of Online Harassment, Pew Rsch. Ctr. 4, 8,

17 (Jan. 13, 2021).3 50% of Black people and people of

color who have experienced harassment online say

they were harassed due to their race or ethnicity,

compared to 17% of white people. Id. at 21. People

2 https://www.justice.gov/sites/default/files/ag/legacy/

2011/08/23/03-18-1965.pdf.

3 https://www.pewresearch.org/internet/2021/01/13/the-state-of-

online-harassment/.

with intersectional identities, such as women of color

and LGBTQ people of color, are even more likely to

experience online threats. See, e.g., Dhanaraj Thakur

et al., An Unrepresentative Democracy: How

Disinformation and Online Abuse Hinder Women of

Color Political Candidates in the United States, Ctr.

for Democracy & Tech. (Oct. 27, 2022);4 Vogels, supra,

at 8.

Rather than foster “free trade in ideas,”

Virginia v. Black, 538 U.S. 343, 358 (2003), online

threats, intimidation, and harassment silence voices.

They cause members of communities to self-censor

and withdraw out of fear of retribution—for sharing

their ideas or simply for existing. Because Black

people and other people of color face disproportionate

amounts of online threats and harassment, their

voices are suppressed at disproportionate rates. These

harmful consequences occur regardless of a speaker’s

subjective intent. And the nature of online

communications makes it harder to disprove abusers

who obfuscate their motivations by falsely claiming

they were joking or misinterpreted.

Yet, courts must be mindful of the potential

risks of over-enforcement of laws criminalizing

threatening speech. This is particularly important for

Black communities, which have historically been

subjected to false prosecution for engaging in activism

related to civil rights and social justice movements.

For these reasons, the Court should adopt a

totality of the circumstances test like Colorado’s,

allowing lower courts to examine the full context of an

4 https://cdt.org/insights/an-unrepresentative-democracy-how-

disinformation-and-online-abuse-hinder-women-of-colorpolitical-candidates-in-the-united-states/.

allegedly threatening statement. The Colorado test

ensures that courts properly balance the interests of

impacted individuals at the receiving end of threats

with the rights of the accused.

However, if the Court finds that subjective

intent is required in true threats cases, it should not

expand such holding beyond criminal prosecutions,

which, unlike civil enforcement actions, involve the

risk of more severe consequences such as

incarceration. In this way, the Court would adhere to

its true threats precedents, all of which concern

criminal cases, and leave unimpeded civil rights laws

protecting essential rights.

Amici respectfully urge the Court to reject a

subjective intent requirement and adopt a totality of

the circumstances test. Rather than foster the

marketplace of ideas, a subjective intent requirement

would frustrate enforcement of the Voting Rights Act

and other civil rights laws and create a more

dangerous internet, one that allows abusers to

threaten freely but leaves victims intimidated into

silence.

ARGUMENT

A subjective intent requirement would

frustrate enforcement of civil rights laws

protecting Black people and other people of

color from threats and intimidation.

Foundational civil rights laws protect against

threats and intimidation when people exercise their

right to vote or seek equal opportunity in commerce,

housing, and places of public accommodations. If the

Court requires a showing of subjective intent, it will

significantly hamper the ability of threatened

individuals to protect themselves from intimidating

speech.

Congress passed major civil rights laws

shortly after abolition in large part to

protect Black people against threats.

The first major federal civil rights statute, the

Civil Rights Act of 1866, was intended to give effect to

the Thirteenth Amendment’s declaration “that all

persons in the United States should be free.” Jones v.

Alfred H. Mayer Co., 392 U.S. 409, 431 (1968) (quoting

Cong. Globe, 39th Cong., 1st Sess., 474)). That means

“[a]t the very least … the freedom to buy whatever a

white man can buy, the right to live wherever a white

man can live.” Id. at 443. It prohibits discrimination

on the basis of race or national origin in contracts and

commercial transactions (42 U.S.C. § 1981) and in

property rights (42 U.S.C. § 1982), including

interference with these rights arising out of

threatening speech and conduct. See, e.g., Shaare

Tefila Congregation v. Cobb, 481 U.S. 615, 616 (1987);

Wong v. Mangone, 450 F. App’x 27, 28 (2d Cir. 2011);

Woods-Drake v. Lundy, 667 F.2d 1198, 1201-02 (5th

Cir. 1982); Evans v. Tubbe, 657 F.2d 661, 662 (5th Cir.

1981); Vietnamese Fishermen’s Ass’n v. Knights of Ku

Klux Klan, 518 F. Supp. 993, 1007-08 (S.D. Tex. 1981).

In the years following the passage of the 1866

Act, the Ku Klux Klan and others terrorized newly

freed Black people, imposing “a veritable reign of

terror” upon Black citizens. Black, 538 U.S. at 353; see

also Briscoe v. LaHue, 460 U.S. 325, 337 (1983);

United Bhd. of Carpenters & Joiners of Am., Loc. 610,

AFL-CIO v. Scott, 463 U.S. 825, 836 (1983). President

Grant called upon Congress to curb “the breakdown of

law and order in the Southern States.” Briscoe, 460

U.S. at 337.

Thus, Congress passed the Ku Klux Klan Act of

1871. Section 2 of this legislation prohibits

conspiracies to use “force, intimidation, or threat” to

prevent officers from performing their official duties;

to obstruct justice or intimidate a party, witness, or

juror in any court of the United States; or to prevent

a person entitled to vote from giving his support or

advocacy in presidential and congressional elections.

42 U.S.C. § 1985.

Since its passage, litigants have relied on the

Ku Klux Klan Act to combat conspiracies involving

threatening speech and conduct that target Black

people and other people of color. See, e.g., Griffin v.

Breckenridge, 403 U.S. 88, 91 (1971); Paynes v. Lee,

377 F.2d 61, 64 (5th Cir. 1967); Sines v. Kessler, 324

F. Supp. 3d 765, 779-98 (W.D. Va. 2018); NCBCP III,

2023 WL 2403012, at *29-31; League of United Latin

Am. Citizens - Richmond Region Council 4614 v. Pub.

Int. Legal Found., No. 1:18-CV-00423, 2018 WL

3848404, at *4-6 (E.D. Va. Aug. 13, 2018) (“LULAC”);

Vietnamese Fishermen’s Ass’n, 518 F. Supp. at 100607.

Congress specifically intended to remove

a mens rea requirement when enacting

the anti-intimidation provision of the

Voting Rights Act, which continues to be

an essential protection against voter

intimidation.

Organized groups and individuals continued to

use threats and violence to suppress the Black vote in

the late 19th and 20th centuries. See, e.g., Black, 538

U.S. at 353 (discussing resurgence of Ku Klux Klan);

Equal Justice Initiative, Lynching in America:

Confronting the Legacy of Racial Terror (3d ed., 2017)

(documenting 4084 racial terror lynchings in twelve

Southern States between 1877 and 1950).5

Congress eventually passed the Civil Rights

Act of 1957, creating civil liability for any person that

threatens another “for the purpose of” interfering with

that person’s right to vote. 52 U.S.C. § 10101. But the

1957 Act was flawed. In particular, district courts

read into the statute a “very onerous burden of proof

of ‘purpose,’” making it “largely ineffective” in

addressing “many types of intimidation, particularly

economic intimidation.” Katzenbach Statement at 12.6

In a hearing before the House Judiciary Committee,

Attorney General Katzenbach described how the

Department of Justice had failed to obtain relief

against a local grand jury that had intimidated Black

voters or against a sheriff and deputy who beat three

Black people attempting to register to vote in a

registrar’s office. Id. at 8-9. In the former, the district

court found the grand jury had “acted in good faith”;

in the latter, “[t]he court ruled that the assault was

not the result of bigotry; but of the deputy sheriff’s

vexation over crowded conditions in the registration

office.” Id.

A provision of the Voting Rights Act of 1965

rectified this deficiency. Section 11(b) created liability

for any person who threatens or attempts to threaten

5 https://lynchinginamerica.eji.org/report/.

6 https://www.justice.gov/sites/default/files/ag/legacy/

2011/08/23/03-18-1965.pdf.

another for voting or attempting to vote. 52 U.S.C.

§ 10307(b). “[N]o subjective ‘purpose’ need be shown”

under Section 11(b) of the Voting Rights Act.”

Katzenbach Statement at 12; see also NCBCP III,

2023 WL 2403012, at *22-23; LULAC, 2018 WL

3848404, at *4; Arizona Democratic Party v. Arizona

Republican Party, No. CV-16-03752-PHX-JJT, 2016

WL 8669978, at *4 n.3 (D. Ariz. Nov. 4, 2016);

Willingham v. Cnty. of Albany, 593 F. Supp. 2d 446,

462 (N.D.N.Y. 2006). Rather, defendants are “deemed

to intend the natural consequences of their acts.”

Katzenbach Statement at 12; see also H.R. Rep. No.

89-439, at 30 (1965), as reprinted in 1965

U.S.C.C.A.N. 2437, 2462 (“no subjective purpose or

intent need be shown”).

The Voting Rights Act has since been used to

combat state prosecutions of Black citizens who were

encouraging others to register and vote, see, e.g.,

Whatley v. City of Vidalia, 399 F.2d 521, 521 (5th Cir.

1968), enjoin the Ku Klux Klan from threatening

Black people seeking to exercise their civil rights, U.S.

by Katzenbach v. Original Knights of Ku Klux Klan,

250 F. Supp. 330, 335 (E.D. La. 1965), and prohibit

individuals from following Native American voters to

the polls or copying their license plate numbers when

driving to or from the polls, see Daschle v. Thune,

Temporary Restraining Order at 2, Civ. 04-4177

(D.S.D. Nov. 2, 2004);7 see also, e.g., NCBCP III, 2023

WL 2403012, at *19-24; Beaumont Chapter of the

NAACP v. Jefferson Cnty., Tex., Order Granting in

Part and Denying in Part Plaintiffs’ Emergency

7 https://www.brennancenter.org/sites/default/files/2020-

07/2004%20Daschle%20TRO.pdf.

Motion for Temporary Restraining Order, ECF No. 14,

Case 1:22-cv-00488-MJT (E.D. Tex. Nov. 7, 2022).

Black people and other people of color continue

to face evolving forms of voter intimidation. See, e.g.,

LULAC, 2018 WL 3848404, at *1 (Latino individuals

falsely accused of voter fraud and had personal

information published along with the accusations);

Hum. Rts. Campaign, LGBTQ+ Voting Barriers:

Results from the 2019 LGBTQ+ Voter Experience

Study (Feb. 11, 2022) (38.4% of Black LGBTQ+ adults

and 58.6% of Black transgender adults chose not to

vote in an election due to fear of harassment);8 S.

Poverty L. Ctr., Fight for Representation: Louisiana’s

Pervasive Record of Racial Discrimination in Voting,

the Steadfast Louisianans Who Battle Onward, & the

Urgent Need to Restore the Voting Rights Act 76-82

(Aug. 16, 2021).9 At the same time, election officials

and other public officials such as teachers and school

board members report alarming increases in threats.

See, e.g., CISA Election Security Warns of the Impact

of Threats to Poll Workers, CBS News, at 01:51 (Sept.

12, 2022) (as many as one in three election workers

quit before the 2022 midterm elections because of

fears for their safety);10 Benenson Strategy Grp., The

Brennan Center for Justice: Local Election Officials

Survey (June 16, 2021) (“1 in 3 local election officials

are concerned about facing harassment or pressure

8 https://www.hrc.org/resources/lgbtq-voting-barriers-results-

from-the-2019-lgbtq-voter-experience-study.

9https://www.splcenter.org/sites/default/files/louisiana_hr_4_rep

ort_final.pdf.

10 https://www.cbsnews.com/video/cisa-election-chief-warns-of-

workforce-problem-due-to-threats-to-poll-workers/.

while on the job”);11 see also, e.g., Alan Feuer, “I Don’t

Want to Die for It”: School Board Members Face Rising

Threats, N.Y. Times (Nov. 5, 2021).12

The Voting Rights Act is as vital today as it was

upon enactment in 1965. Congress specifically

dispensed with a subjective intent requirement to

achieve its legislative purpose. A holding that the true

threats doctrine requires subjective intent would

appear to conflict with the longstanding dispensation

of Section 11(b)’s mens rea requirement.

Numerous other federal and state civil

rights statutes prohibit threats without

requiring subjective intent.

In addition to the Voting Rights Act and Ku

Klux Klan Act, other critical federal and state civil

rights statutes prohibit threats without requiring

subjective intent. The Fair Housing Act, for example,

makes it unlawful to threaten a person in the exercise

or enjoyment of housing rights. 42 U.S.C. § 3617; see

also, e.g., Md. Code Ann., State Gov’t § 20-708; Wash.

Rev. Code Ann. § 49.60.2235. In one year alone, the

Department of Justice settled eight sexual

harassment cases in the housing context, including

one alleging that for over 15 years, owners of 80

residential properties around Oklahoma City engaged

in a pattern or practice of sexual harassment against

female tenants and prospective tenants. Nat’l Fair

Hous. All., 2022 Fair Housing Trends Report 21-22

11 https://www.brennancenter.org/our-work/research-

reports/local-election-officials-survey-june-2021.

12 https://www.nytimes.com/2021/11/05/us/politics/school-boardthreats.html

(2022).13 The harassment included evicting or

threatening to evict tenants who refused to engage in

sexual acts. Id. at 22. Fair housing laws prohibiting

threats and intimidation are especially important to

low-income

women

color,

who

are

disproportionately likely to be victims of sexual

harassment by their landlords. See Rigel C. Oliveri,

Sexual Harassment of Low-Income Women in

Housing, 83 Miss. L. Rev. 597, 618 (2018).14

Black people and other people of color also rely

on state statutes to combat threats and intimidation

in public accommodations and public spaces,

including online. See, e.g., Cal. Civ. Code § 52.1

(federal and state constitutional rights); D.C. Code

§ 2-1402.61 (rights under D.C. human rights law).

These laws protect the ability to fully participate in a

community and to live life with basic dignity. In 2017,

Taylor Dumpson, the first Black woman elected to be

student government president of American

University, was the target of an online harassment

campaign spearheaded by a neo-Nazi website, The

Daily Stormer. See Dumpson, 2019 WL 3767171, at

*1. At the time, The Daily Stormer was the most

influential neo-Nazi outlet on the internet. Keegan

Hankes, Eye of the Stormer, S. Poverty L. Ctr. (Feb. 9,

2017).15 It published Dumpson’s name and photo and

directed followers to her Facebook and Twitter

accounts. Dumpson, 2019 WL 3767171, at *1. The

followers then bombarded her with racist, threatening

13 https://nationalfairhousing.org/wp-

content/uploads/2022/11/2022-Fair-Housing-Trends-Report.pdf.

14 https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?

article=1720&context=facpubs.

15 https://www.splcenter.org/fighting-hate/intelligencereport/2017/eye-stormer.

messages. Id. at *1-2. The threats caused Dumpson to

fear for her life, to fear leaving her home at night, and

to suffer post-traumatic stress disorder and severe

psychological injuries. Id. at *2. Because she felt

unsafe, she was unable to fully socialize on her school

campus. See id. at *5. The court held the defendants

violated the District of Columbia’s Human Rights

Law, D.C. Code §§ 2-1402.61, 2-1402.62, which

prohibits using threats to interfere in the exercise or

enjoyment of civil rights. Id. at 4-5; see also Gersh v.

Anglin, 353 F. Supp. 3d 958, 962 (D. Mont. 2018)

(denying The Daily Stormer’s publisher’s motion to

dismiss claims under Montana’s Anti-Intimidation

Act, Mont. Code Ann. § 27-1-1503, for initiating an

online harassment campaign).

In safeguarding the right to live free from

threats and to equal access to public establishments,

these laws help ensure that Black people and other

people of color can participate fully in their

communities and live their day-to-day lives with

dignity and respect. Requiring plaintiffs to prove

subjective intent would increase barriers to

enforcement and impair that right to dignity and

respect.

II.

Online threats cause substantial harm and

chill the free expression of impacted

individuals.

Online threats—including online stalking,

harassment, and other forms of internet-enabled

intimidation—are harmful regardless of the

subjective intent of the speaker. Among other things,

they chill the free speech and association of victims,

bystanders, and other members of the targeted

groups. See Opp. to Cert at 23-24 (describing how a

stalker’s detachment from reality does not affect the

harm inflicted by the stalking). Some offenders resort

to contrived defenses concerning their subjective state

of mind, particularly in cases involving online threats

like this one. A subjective intent requirement would

allow those offenders to escape liability and harmful

threats to persist and proliferate without

repercussion.

Online threats chill free speech.

Roughly four in ten Americans and over six in

ten Americans under 30 have experienced

intimidation in the form of online harassment. See

Anti-Defamation League & Ctr. for Tech. & Soc’y,

Online Hate and Harassment: The American

Experience 2022 10 (June 20, 2022);16 Vogels, supra,

at 15-16. At least 25% of all adults have experienced

severe online harassment in the form of physical

threats, sustained harassment, stalking, sexual

harassment, doxing, or swatting. Anti-Defamation

League & Ctr. for Tech. & Soc’y, supra, at 10; Vogels,

supra, at 4; see also Rachel E. Morgan & Jennifer L.

Truman, Stalking Victimization, 2019, U.S. Dep’t of

Just. 6 (Feb. 2022) (“In 2019, nearly 1 million U.S.

residents aged 16 or older were victims of

cyberstalking.”).17 That number rises to 51% for

lesbian, gay, or bisexual adults. Vogels, supra, at 8. A

third of women under 35 report having been sexually

harassed online. Morgan & Truman, supra, at 17.

16 https://www.adl.org/sites/default/files/pdfs/2022-09/Online-

Hate-and-Harassment-Survey-2022.pdf.

17 https://bjs.ojp.gov/content/pub/pdf/sv19.pdf.

Black people and other people of color

experience

significant

amounts

hateful

harassment, particularly online. More than half of

Black people who have experienced harassment

online say they were harassed due to their race or

ethnicity, compared to 17% of white people. Vogels,

supra, at 21; see also PEN Am., Online Harassment

Survey: Key Findings (last visited Mar. 28, 2023) (45%

of writers and journalists identifying as people of color

reported being attacked for their race or ethnic origin,

compared to 22% of white respondents).18 “Hispanic

(20%) or Black (17%) adults who have experienced

online harassment are about twice as likely as their

White counterparts (9%) to say they were stalked in

their most recent online harassment experience.”

Vogels, supra, at 24.

Black women and other women of color are

even more likely to experience harassment. See

Amnesty Int’l, Troll Patrol Findings (last visited Mar.

28, 2023) (analyzing millions of tweets and finding

that Black women were 84% more likely to be

mentioned in abusive tweets than white women).19 In

a study of the 2020 Congressional election, women of

color candidates were five times more likely than

other candidates to experience online abuse related to

their gender and race identity. Dhanaraj Thakur et

al., supra;20 see also Rebekah Herrick et al., Gender

and Race Differences in Mayors’ Experiences of

Violence, Ctr. for Am. Women & Politics (2022) (study

of U.S. mayors showed women of color experienced

18 https://pen.org/online-harassment-survey-key-findings/.

19 https://decoders.amnesty.org/projects/troll-patrol/findings.

20 https://cdt.org/insights/an-unrepresentative-democracy-how-

disinformation-and-online-abuse-hinder-women-of-colorpolitical-candidates-in-the-united-states/.

more threats than other groups).21 Once they assume

office, Black women are subjected to death threats

and other violent, racist threats. See Candice

Norwood, More Black Women Are Being Elected to

Office. Few Feel Safe Once They Get There, PBS

NewsHour (July 17, 2021).22 One website posted neardaily racist and sexist insults about a Black state

attorney, along with her home address, and “invited

people to pay her a visit.” Id.

Threats cause significant harm regardless of

the subjective intent of the speaker. Roughly a

quarter of online harassment targets say their most

recent experience with online harassment was very or

extremely upsetting. Vogels, supra, at 15. In a prior

survey, 20% of Americans said online harassment led

to problems with friends and family, in romantic

relationships, at work, or in school; caused a financial

loss; or contributed to trouble finding a job or housing.

Maeve Duggan, Online Harassment 2017 20, Pew

Rsch. Ctr. 20 (July 11, 2017).23 Another survey found

20% of people who experienced online harassment had

trouble sleeping or concentrating or felt anxious; 13%

had suicidal thoughts; and 10% took steps to reduce

risks to physical safety, such as moving. Anti-

21 https://cawp.rutgers.edu/research/cawp-grants-and-

awards/cawp-research-grants/research-briefs/gender-and-racedifferences-mayors-experiences.

22 https://www.pbs.org/newshour/politics/more-black-womenare-being-elected-to-office-few-feel-safe-once-they-get-there.

23 https://www.pewresearch.org/internet/2017/07/11/onlineharassment-2017-methodology/

Defamation League & Ctr. for Tech. & Soc’y, supra, at

10.24

Online

harassment

has

particularly

detrimental effects on young people of color. According

to one study, “Black and Hispanic teens who used

social media more were more likely than not to

encounter

online

racial

harassment

discrimination,”

and

that

harassment

discrimination caused them to doubt their academic

skills and harmed their mental health. See Alvin

Thomas, Online Racial Harassment Leads to Lower

Academic Confidence for Black and Hispanic

Students, The Conversation (Jan. 23, 2023).25

Hateful harassment also inhibits the free

speech and full participation of affected communities

regardless of the subjective intent of the speaker.

Many people preemptively self-censor and withdraw

for fear of being targeted. 27% of U.S. adults say they

have refrained from posting something online and

13% elected to stop using an online service after

witnessing harassment. Duggan, supra, at 11. Studies

show that when confronted with online harassment,

women are more likely to self-censor or withdraw from

online platforms altogether. See Kalyani Chadha et

al., Women’s Responses to Online Harassment, 14 Int’l

J. Commc’ns 239, 247-48 (2020); George Veletsianos

et al., Women Scholars’ Experiences with Online

Harassment and Abuse: Self-Protection, Resistance,

Acceptance, and Self-Blame 14 (2018) (harassment of

24 https://www.adl.org/sites/default/files/pdfs/2022-09/Online-

Hate-and-Harassment-Survey-2022.pdf.

25 https://theconversation.com/online-racial-harassment-leadsto-lower-academic-confidence-for-black-and-hispanic-students197515.

women scholars led to their avoiding certain social

media platforms and “turning to silence”);26 Amanda

Lenhart, Online Harassment, Digital Abuse, and

Cyberstalking, Data & Soc’y Rsch. Inst. (Nov. 21,

2016) (41% of women ages 15-29 self-censor).27

Indeed, numerous prominent women of color have

withdrawn from online discourse as a result of online

harassment. See, e.g., Jason Guerrasio, ‘Star Wars’

actress Kelly Marie Tran Left Social Media After

Racist and Sexist Trolls Drove Her to Therapy, Insider

(Mar. 3, 2021);28 James Byrd Jr. Center to Stop Hate

at the Lawyers’ Committee for Civil Rights Under

Law, Hate in Elections 8 (Sept. 2020) (Black female

lawmaker in Vermont left office after severe

harassment online and in person);29 Lucina Fisher &

Brian McBride, ‘Ghostbusters’ Star Leslie Jones Quits

Twitter After Online Harassment, ABC News (July 20,

2016).30

The chilling effects are particularly pronounced

when it comes to the experiences of women

journalists, who are exposed to increasing numbers of

online attacks and consequently withdraw from public

discourse. A survey of over one thousand journalists

worldwide found that nearly 75% had experienced

online violence, including threats of physical violence,

26 https://www.veletsianos.com/wp-

content/uploads/2011/07/harassment_coping_postPrint.pdf.

27 https://www.datasociety.net/pubs/oh/

Online_Harassment_2016.pdf.

28 https://www.insider.com/kelly-marie-tran-racist-sexist-trollssocial-media-2021-3.

29 https://lawyerscommittee.org/wpcontent/uploads/2020/09/LC2_HATE-INELECTIONS_RPT_E_HIGH-1.pdf.

30 https://abcnews.go.com/Entertainment/ghostbusters-starleslie-jones-quits-twitter-online-harassment/story?id=40698459.

sexual violence, and violence against their children,

infants, and other loved ones. Julie Posetti &

Nabeelah Shabbir, The Chilling: A Global Study of

Online Violence Against Women Journalists, Int’l Ctr.

for Journalists 8, 11 (Nov. 2022).31 Rates of online

harassment increase significantly for Black women

and other women with intersectional identities. Id. at

47-48 (81% of women journalists identifying as Black

experienced online harassment). 20% of respondents

reported offline abuse connected to their online abuse.

See id. at 12. Besides increasing their physical

security, relocating, missing work, and suffering from

anxiety and post-traumatic stress disorder (PTSD),

30% of the respondents said they self-censor on social

media and 20% withdrew from all online interaction.

Id. Some quit their jobs or abandoned journalism. Id.;

see also 39th Ring Carlson & Haley Witt, Online

Harassment of U.S. Women Journalists and its

Impact on Press Freedom (Oct. 10, 2022) (women

journalists avoided certain stories for fear of online

abuse).32

A subjective intent requirement would

allow individuals to escape liability for

online threats.

Proving subjective intent for someone behind a

screen can be difficult. Individuals sometimes defend

their actions by asserting their intent to be humorous

or provocative and that no one should take them

seriously. In March 2023, a court granted summary

judgment against two individuals who used an online

31 https://www.icfj.org/sites/default/files/2022-

11/ICFJ_UNESCO_The%20Chilling_2022_1.pdf.

32 https://firstmonday.org/ojs/index.php/fm/article/view/11071

/9995.

platform to send 85,000 robocalls targeted to Black

people in an attempt to scare them from voting by

mail in the 2020 election. See NCBCP III, 2023 WL

2403012, at *1-3. They falsely claimed that if voters

voted by mail, the police would try to track them

down, debt collectors would come after them, or the

CDC would try to use their information to forcibly

vaccinate them. Id. at *3. Defendants tried to paint

themselves as “goofballs and political hucksters with

an irreverent sense of humor.” Id. at *28. The court

rejected that argument. Id. And in granting a

temporary restraining order in 2020, the court wrote:

Today, almost 150 years later, the forces

and conflicts that animated Congress’s

adoption of the Ku Klux Klan Act as well

as subsequent voting rights legislation,

are playing out again before this Court,

though with a difference. In the current

version of events, the means Defendants

use to intimidate voters, though born of

fear and similarly powered by hate, are

not guns, torches, burning crosses and

other dire methods perpetrated under

the cover of white hoods. Rather,

Defendants carry out electoral terror

using telephones, computers, and

modern technology adapted to serve the

same deleterious ends. Because of the

vastly greater population they can reach

instantly with false and dreadful

information, contemporary means of

voter intimidation may be more

detrimental to free elections than the

approaches taken for that purpose in

past eras, and hence call for swift and

effective judicial relief.

NCBCP I, 498 F. Supp. 3d at 464.

Purported humor also is a common excuse in

threats cases outside of the voting context. See, e.g.,

Chen Through Chen v. Albany Unified Sch. Dist., 56

F.4th 708, 712, 722 (9th Cir. 2022) (student defended

Instagram posts threatening lynching Black students

by arguing they were “attempts at ‘humor’”); D.C. v.

R.R., 106 Cal. Rptr. 3d 399, 423 (Cal. Ct. App. 2010),

as modified (Apr. 8, 2010) (“When teens were asked

why they think others cyberbully, 81 percent said that

cyberbullies think it’s funny.”).

These defenses can be difficult to disprove.

Unlike in-person communications, there are no

witnesses to the drafting of the threat. Indeed, online

threats can be made anonymously and from a

distance, meaning the recipient cannot testify as to

the speaker’s demeanor. Online threats often are

made using text; the recipient cannot testify as to tone

of voice. Individuals also have a plethora of ways to

make veiled threats online, including through the use

of emojis, images, and memes, all of which allow

speakers to hide behind facetious claims invoking

satire and humor even while those communications

carry their intended threatening weight. See Kim

Albarella, The Secret Language of Emoji, Nat’l

Cybersecurity All. (Oct. 2, 2018) (describing how

bullies communicate harmful messages while hiding

behind the original meaning of emojis to protect

themselves).33

To be clear, amici recognize that there are

situations where speech is genuinely misunderstood

or a listener is not able to take a joke. However, there

are instances where defendants falsely invoke satire,

humor, or similar excuses to create a veneer of

plausible deniability that they never meant to be

harmful. In these instances, allowing defendants to

escape liability because of such pretexts would

significantly undermine enforcement of laws

protecting against online threats.

Online threats harm Black people and other

people of color and chill the free speech of the listener,

regardless of the speaker’s subjective intent.

Requiring subjective intent would result in the

proliferation of online threats against people of color

and constrain their ability to seek recourse.

III.

The true threats doctrine must balance

protecting

communities

against

intimidation

and

preventing

discriminatory

enforcement

laws

criminalizing threats.

While a subjective intent requirement would

hamstring critical civil rights protections and chill

free speech, a totality of the circumstances test that

allows courts to consider all relevant evidence would

help safeguard against risks to Black communities of

33 https://staysafeonline.org/resources/the-secret-language-of-

emoji/.

discriminatory

over-enforcement,

wrongful

prosecution, and persecution of civil rights activists.

Amici are concerned that laws criminalizing

threats, like other facets of the justice system, may be

used disproportionately and discriminatorily against

Black people and other people of color. Racism in the

criminal justice system results in higher incarceration

rates of Black people and higher rates of wrongful

convictions. A Black adult is five times more likely

than a white adult to say they have been unfairly

stopped by police because of their race or ethnicity.

Drew Desilver et al., 10 Things We Know About Race

and Policing in the U.S., Pew Rsch. Ctr. (June 3,

2020).34 As of 2021, Black people are incarcerated in

state prisons at nearly five times the rate of white

people. Ashley Nellis, The Color of Justice: Racial and

Ethnic Disparity in State Prisons, The Sentencing

Project (Oct. 13, 2021).35 The convictions of Black

people are overturned at significantly higher rates

than white Americans. “As of August 8, 2022, the

National Registry of Exonerations listed 3,200

defendants who were convicted of crimes in the

United States and later exonerated because they were

innocent; 53% of them were Black, nearly four times

their proportion of the population, which is now about

13.6%.” Samuel R. Gross et al., Race and Wrongful

Convictions in the United States 2022, Nat’l Registry

of Exonerations 1 (Sep. 2022).36 Black people are 7.5

34 https://www.pewresearch.org/fact-tank/2020/06/03/10-things-

we-know-about-race-and-policing-in-the-u-s/.

35 https://www.sentencingproject.org/reports/the-color-of-justiceracial-and-ethnic-disparity-in-state-prisons-the-sentencingproject/.

36 https://www.law.umich.edu/special/exoneration/Documents

/Race%20Report%20Preview.pdf.

times more likely to be wrongfully convicted of murder

than white people, eight times more likely than white

people to be falsely convicted of rape, and about 80%

more likely to be innocent than others convicted of

murder. Id. at 3-4, 18.

Laws criminalizing threats provide law

enforcement an additional tool to potentially silence

civil rights activists and chill protected free speech on

issues of public importance. Law enforcement has a

long history of wrongfully and disproportionately

persecuting Black leaders and activists. “At the turn

of the 20th century, law enforcement targeted Ida B.

Wells and Marcus Garvey as ‘race agitators.’” Nusrat

Choudhury & Malkia Cyril, The FBI Won’t Hand Over

Its Surveillance Records on ‘Black Identity

Extremists,’ so We’re Suing, ACLU (Mar. 21, 2019).37

Dr. Martin Luther King, Jr. was arrested more than

25 times between 1956 and 1967, and many others

with him. Equal Justice Initiative, Persecution of Civil

Rights Activists (Jan. 1, 2014).38 During nationwide

demonstrations following George Floyd’s murder,

Black demonstrators were arrested at significantly

higher percentages than their white counterparts.

See, e.g., Karen J. Pita Loor, An Argument Against

Unbounded Arrest Power: The Expressive Fourth

Amendment and Protesting While Black, 120 Mich. L.

Rev. 1581, 1611 (2022); Meryl Kornfield et al., Swept

Up by Police, Wash. Post (Oct. 23, 2020);39 Melissa

Chan, These Black Lives Matter Protesters Had No

37 https://www.aclu.org/news/racial-justice/fbi-wont-hand-over-

its-surveillance-records-black.

38 https://eji.org/news/history-racial-injustice-persecution-ofcivil-rights-activists/.

39 https://www.washingtonpost.com/graphics/2020/

investigations/george-floyd-protesters-arrests/.

Idea How One Arrest Could Alter Their Lives, Time

(Aug. 19, 2020).40

The Court should adopt a totality of the

circumstances test to safeguard against these harms.

Colorado’s test in particular, discussed infra, strikes

the appropriate balance, allowing courts to protect

Black people and other people of color from

discriminatory enforcement of laws criminalizing

threats without frustrating enforcement of civil rights

laws.

IV.

Colorado’s true threats test protects Black

people and other people of color from

threats

and

discriminatory

overenforcement.

Courts must consider the complete context

surrounding putative true threats to protect Black

people and other people of color from intimidation

while ensuring that laws prohibiting threats are not

abused to stifle citizens’ constitutionally protected

speech. That is exactly what the Colorado test from

People ex rel. R.D., 464 P.3d 717 (Col. 2020),

accomplishes.

The Colorado test starts “with the words

themselves, along with any accompanying symbols,

images, and other similar cues to the words’

meaning.” Id. at 731. But because the meaning of a

word or phrase is inseparable from its context, “what

a [speaker] actually said is just the beginning of a

threats analysis.” Id. at 732 (quoting Haughwout v.

Tordenti, 211 A.3d 1, 11 (Conn. 2019)). The Colorado

40 https://time.com/5880229/arrests-black-lives-matter-protests-

impact/.

test thus considers the following, non-exhaustive list

of factors to determine the full context in which the

statement was made:

(1) the statement’s role in a broader

exchange, if any, including surrounding

events; (2) the medium or platform

through which the statement was

communicated, including any distinctive

conventions or architectural features;

(3) the manner in which the statement

was conveyed (e.g., anonymously or not,

privately or publicly); (4) the relationship

between the speaker and recipient(s);

and (5) the subjective reaction of the

statement’s intended or foreseeable

recipient(s).

Id. at 731. Application of each of these factors, as well

as the ability to consider additional factors, protects

Black people from voter intimidation and threats

while inhibiting discriminatory over-enforcement of

laws criminalizing threatening speech. See id.

(holding contextual factors “are not limited to” the five

discussed in the decision).

The first factor, “a statement’s role in a broader

exchange, if any, including surrounding events,” id.,

allows courts to consider context of and connotations

from a statement, such as language or symbols that

invoke historic oppression of particular groups. See,

e.g., Black, 538 U.S. at 354-57 (recounting history of

cross burning and holding that “when a cross burning

is used to intimidate, few if any messages are more

powerful”). This is a persistent theme in threats

targeting Black people and other people of color. See,

e.g., Chen Through Chen, 56 F.4th at 712, 722

(Instagram posts depicted lynching; a Klan member

in a white hood; and pictures of a noose, white hood,

burning torch, and Black doll, captioned “Ku klux

starter pack”); United States v. Nguyen, 673 F.3d

1259, 1261 (9th Cir. 2012) (letter drew on fears of

deportation and harassment regarding immigration

status); LULAC, 2018 WL 38404, at *1 (publications

with voters’ personal information drew on the double

entendre “Alien Invasion”); NCBCP III, 2023 WL

2403012, at *20-21 (robocall drew upon the history of

discrimination in policing and lending, and the “dark

history of forced medical experimentation on the

Black community”). But it also allows courts to

consider immediate context, such as whether a

protestor makes intemperate communications in

response to contemporaneous social and political

debates. Such speech should be considered “against

the background of a profound national commitment”

to open debate of public issues which “may well

include

vehement,

caustic,

and

sometimes

unpleasantly sharp attacks on government and public

officials.” Watts, 394 U.S. at 708 (quoting New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).

The second factor, the medium or platform

through which the statement was communicated,

accounts for unique concerns relating to online

threats. What is shocking and threatening in one

context may not be in another. For example, saying

“I’m going to kill you” in a video game may convey a

different meaning from saying it to someone on social

media or in a parking lot. See People ex rel. R.D., 464

P.3d at 732 (“[E]vidence regarding prevailing norms

in a particular genre or even internet subforum may

also help recast violent language in a less threatening

light.”) (citing Bell v. Itawamba Cty. Sch. Bd., 774

F.3d 280, 301 (5th Cir. 2014)); see also Cohen v.

California, 403 U.S. 15, 26 (1971) (“[M]uch linguistic

expression serves a dual communicative function …

words are often chosen as much for their emotive as

their cognitive force”). Some platforms also allow

speakers to remain anonymous, which may “influence

a listener’s perception of danger.” People ex rel. R.D.,

464 P.3d at 733.

Likewise, the third factor, manner of

conveyance, accounts for the difference between

public and private communications. Public speeches,

for example, may contain “[s]trong and effective

extemporaneous rhetoric,” which “cannot be nicely

channeled in purely dulcet phrases.” N.A.A.C.P. v.

Claiborne Hardware Co., 458 U.S. 886, 928 (1982).

Private communications, however, do not serve the

same purpose of “stimulat[ing] [an] audience with

spontaneous and emotional appeals for unity and

action in a common cause.” Id. This distinction is an

important nuance of online communications. As

Justice Alito noted in Elonis, “lyrics in songs that are

performed for an audience or sold in recorded form are

unlikely to be interpreted as a real threat to a real

person…. Statements on social media that are

pointedly directed at their victims, by contrast, are

much more likely to be taken seriously.” 575 U.S. at

747 (Alito, J., concurring in part and dissenting in

part); see also NCBCP I, 498 F. Supp. 3d at 485

(deeming “highly relevant that this message was

conveyed directly to individual voters by phone”).

The fourth factor, the relationship between

speaker and recipients, accounts for the difference

between strangers and individuals with pre-existing

relationships. In online communications, this can cut

both ways. A lack of a pre-existing relationship may

indicate that the speaker is stalking or harassing the

listener, as in this case. See Pet. App. 18a. But so too

can close relationships in which the speaker is

familiar with the listener. See People ex rel. R.D., 464

P.3d at 733 (noting that in Elonis, “the defendant’s

alleged threats included lyrics posted to Facebook

that threatened violence against his wife soon after

she left him and took with her their two children”);

Morgan & Truman, supra, at 8 (54.3% of victims

stalked with “technology only” were stalked by a

“known offender,” whereas 80.9% of victims stalked

with both “traditional stalking” methods and

technology were stalked by a “known offender”).

Again, considering the total context of the

communication is key to assessing whether a threat is

“true” or not.

Finally, the fifth factor, the reaction of a

statement’s intended or foreseeable listener, provides

courts with objective guideposts to determine whether

speakers are engaged in protected speech—such as

whether they are joking—without investigating the

often-inscrutable intent of the speaker, an analysis

that may be colored by the pre-existing inclinations

and biases of prosecutors, judges, and juries. The

recipients of the robocall in NCBCP, for example,

“were frightened, enraged, and distressed upon

receiving the call.” NCBCP III, 2023 WL 2403012, at

*22. In Dumpson, the victim was diagnosed with

PTSD, an eating disorder, depression, and anxiety

after being subjected to online harassment. 2019 WL

3767171, at *2. But in Watts, the crowd laughed after

Watts made his allegedly threatening statement. 394

U.S. at 707. Likewise, in Perez v. Florida, “the whole

group laughed” at Perez’s “drunken joke” and “at least

one witness testified that she did not find Perez

threatening.” 137 S. Ct. 853 (Mem.), 853, 855 (2017).

However, in Perez the jury was “directed to convict

solely on the basis of what Perez ‘stated’” and thus

was not required to consider the context of the

statement or the reaction of those who heard it. Id. at

855. Had the jury been told to consider the reaction of

the listeners, Perez’s trial might have ended

differently.

Under Colorado’s test, courts must consider all

relevant factors, including any additional factors

besides those explicitly delineated in People ex rel.

R.D. Colorado thus provides a clear framework by

which to judge speech, enabling punishment of

harmful intimidation while ensuring protection

against the discriminatory use of laws criminalizing

threats.

The Court should not import a subjective

intent requirement into civil true threats

cases.

Amici agree with Respondent that the First

Amendment does not require proof of subjective intent

in any true threats case—whether it be a criminal

prosecution or otherwise. But at a minimum, there is

no basis for importing such a scienter requirement

into civil statutes aimed at curtailing true threats.

First, to conclude otherwise would be a significant

expansion of both this Court’s and federal appellate

courts’ “true threat” precedents to date. Second,

criminal

prosecutions

have

serious

consequences than civil enforcement actions,

including the risk of incarceration and long-term

consequences from having a criminal record. Third,

the Court can insulate civil enforcement of the Voting

Rights Act, Fair Housing Act, and other civil rights

laws by refraining from creating a subjective intent

requirement for civil actions.

The few cases in which this Court has

considered the scope of the true threats doctrine all

involved criminal prosecutions, not civil claims. See

Watts, 394 U.S. 705; Black, 538 U.S. 343; see also

Elonis v. United States, 575 U.S. 723; Kansas v.

Boettger, 140 S. Ct. 1956 (Mem) (2020); Perez, 137 S.

Ct. 853 (Mem). The only two circuits to have imposed

a subjective intent requirement in true threats cases

on First Amendment grounds likewise did so in the

context of criminal proceedings. See, e.g., United

States v. Heineman, 767 F.3d 970, 975 (10th Cir. 2014)

(requiring “the government to prove in any truethreat prosecution that the defendant intended the

recipient to feel threatened”); United States v.

Bagdasarian, 652 F.3d 1113, 1116 (9th Cir. 2011)

(requiring subjective intent analysis “when examining

whether a threat is criminal” (emphasis added)).

The Court’s concern with criminal prosecutions

as opposed to civil actions is reflected in its true

threats jurisprudence. In deeming unconstitutional a

provision that made cross burning prima facie

evidence of intent to intimidate, the Black plurality

noted its unease that the provision permitted the

state to “arrest, prosecute, and convict a person based

solely on the fact of cross burning itself.” See 538 U.S.

at 365 (plurality). In the opening line of a dissent from

the denial of a petition for writ of certiorari in Perez,

Justice Sotomayor similarly expressed consternation

that the defendant would be serving time in prison for

the alleged threat. See 137 S. Ct. at 853. And in both

Perez and Justice Thomas’s dissent from the denial of

certiorari in Boettger, the Justices described the scope

of the issue as whether the First Amendment requires

subjective intent for statutes “criminalizing” threats.

See Boettger, 140 S. Ct. at 1956; Perez, 137 S. Ct. at

854.

That courts have focused on whether laws

criminalizing true threats require proof of subjective

intent to sustain a criminal conviction—as opposed to

laws enabling civil enforcement—is hardly surprising.

There are different consequences in criminal versus

civil cases, which justify different elements for

liability. See Pet. Br. at 3 (noting that “criminalizing

speech raises ‘special concern’ under the First

Amendment”). Civil cases do not carry the threat of

incarceration, probation, forfeiture of the right to vote

or other rights, the persistence of a criminal record on

future background checks, and other lasting collateral

consequences.

Thus, “when [this Court] interprets criminal

statutes,” it “normally start[s] from a longstanding

presumption, traceable to the common law, that

Congress intends to require a defendant to possess a

culpable mental state.” Ruan v. United States, 142 S.

Ct. 2370, 2377 (2022) (internal quotation marks

omitted). The result of this presumption is that this

Court has “read into criminal statutes that are silent

on the required mental state—meaning statutes that

contain no mens rea provision whatsoever—that mens

rea which is necessary to separate wrongful conduct

from otherwise innocent conduct.” Id. (internal

quotation marks omitted); see also Torres v. Lynch,

578 U.S. 452, 467 (2016). And “[u]nsurprisingly, given

the meaning of scienter, the mens rea [this Court] has

read into such statutes is often that of knowledge or

intent.” Ruan, 142 S. Ct. at 2377. That is exactly what

this Court did in Elonis when it concluded that a

statute criminalizing certain threats transmitted in

interstate commerce (18 U.S.C. § 875(c)) did not reach

defendants who acted without the requisite mental

state. 575 U.S. at 740. However, the common law

“presumption” of a scienter requirement applies only

to criminal laws, not civil statutes. Indeed, “[t]he

existence of a scienter requirement is customarily an

important element in distinguishing criminal from

civil statutes.” Kansas v. Hendricks, 521 U.S. 346, 362

(1997).

As set forth above, this Nation’s civil rights

laws have been essential bulwarks against insidious

discrimination, including on the basis of race. By

limiting any holding requiring subjective intent to

criminal cases, the Court can protect essential rights

such as voting rights and the right to equal access in

housing and public accommodations. Accordingly, if

this Court concludes that the government was

required to prove Petitioner’s mental state in this

case, it should not expand that holding to civil actions.

CONCLUSION

The Court should adopt the Colorado test and

affirm. However, if the Court holds that subjective

intent is required to show a true threat, it should not

expand the holding beyond criminal prosecutions.

Respectfully submitted.

Damon Hewitt*

Jon Greenbaum

Dariely Rodriguez

David Brody

Counsel of Record

Marc Epstein

LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS

UNDER LAW

1500 K St. NW, Ste. 900

Washington, DC 20005

(202) 662-8600

* Admitted in Pennsylvania

only. Practice limited to

matters before federal courts.

Anthony D. Mirenda

Matthew Casassa

FOLEY HOAG LLP

Seaport West

155 Seaport Blvd.

Boston, MA 02210

(617) 832-1000

James M. Gross

Fernando Berdion-Del Valle

FOLEY HOAG LLP

1301 Ave. of the Americas

New York, NY 10019

(212) 812-4000

Counsel for Amici Curiae

March 31, 2023

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.