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.
STATE OF COLORADO
ON WRIT OF CERTIORARI
TO THE COLORADO COURT OF APPEALS
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
KENNETH A. POLITE, JR.
Assistant Attorney General
ERIC J. FEIGIN
Deputy Solicitor General
NICOLE FRAZER REAVES
Assistant to the Solicitor
General
PAUL T. CRANE
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the First Amendment precludes criminal
conviction of a defendant who makes a communication
that a reasonable person would understand as a threat
of injury or death unless the prosecution has proof beyond a reasonable doubt of the defendant’s subjective
intent or knowledge that it would be taken as such a
threat.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 7
Argument:
A defendant cannot claim immunity to make violent
threats under the First Amendment based on his
subjective mindset ................................................................... 9
A. A “true threat” is defined by how a reasonable
person would understand a statement’s content and
context, not the ability to disprove a defendant’s
unreasonable views of how a statement would be
perceived ............................................................................ 9
1. A statement that, based on its content and
context, is threatening to a reasonable person
has minimal expressive value and is inherently
harmful irrespective of the speaker’s private
views ........................................................................... 10
2. The definition of a true threat, like the harms
that it causes, is based on how a reasonable
person would understand it ..................................... 12
3. Threats have historically been prohibited
without requiring proof of a defendant’s
subjective intent or knowledge................................ 13
4. Other forms of unprotected speech are likewise
defined in objective terms ........................................ 17
B. Petitioner’s arguments for a specific intent or
knowledge requirement lack merit ............................... 20
1. Petitioner misinterprets the historical sources ..... 20
2. Petitioner overreads this Court’s decisions ........... 23
3. Petitioner’s chilling concerns are unfounded ......... 27
C. If the Court requires a subjective mindset in true
threats cases, it should adopt recklessness .................. 28
Conclusion ................................................................................... 31
(III)
IV
TABLE OF AUTHORITIES
Cases:
Page
Boos v. Barry, 485 U.S. 312 (1988) ...................................... 30
Borden v. United States, 141 S. Ct. 1817 (2021) ................. 29
Bose Corp. v. Consumers Union of
United States, Inc., 466 U.S. 485 (1984) ........................... 28
Brandenburg v. Ohio, 395 U.S. 444 (1969).......................... 26
Cantwell v. Connecticut, 310 U.S. 296 (1940) ............... 18, 21
Carter v. United States, 530 U.S. 255 (2000) ........................ 9
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)......... 18
Cohen v. California, 403 U.S. 15 (1971) .............................. 18
Commonwealth v. Burdick, 2 Pa. 163 (1845) ...................... 16
Commonwealth v. Morton,
131 S.W. 506 (Ky. Ct. App. 1910) ...................................... 17
Commonwealth v. Patrick, 105 S.W. 981
(Ky. Ct. App. 1907) ............................................................. 17
Elonis v. United States,
575 U.S. 723 (2015)................... 2, 3, 11, 12, 17, 19, 23, 28, 29
Farmer v. Brennan, 511 U.S. 825 (1994) ............................ 29
Garrison v. Louisiana, 379 U.S. 64 (1964) ......................... 29
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .... 22, 29, 30
Hamling v. United States, 418 U.S. 87 (1974) .................... 19
Hansen v. State, 34 S.W. 929 (Tex. Crim. App. 1896)........ 16
Hess v. Indiana, 414 U.S. 105 (1973)................................... 26
Illinois v. Telemarketing Assocs., Inc.,
538 U.S. 600 (2003).............................................................. 26
Kansas v. Boettger, 140 S. Ct. 1956 (2020) .......................... 13
King v. Girdwood, (1776) 168 Eng. Rep. 173 (K.B.) .......... 14
Masson v. New Yorker Magazine, Inc.,
501 U.S. 496 (1991).............................................................. 30
McKee v. Cosby, 139 S. Ct. 675 (2019) ................................. 22
Miller v. California, 413 U.S. 15 (1973) .............................. 18
V
Cases—Continued:
Page
New York v. Ferber, 458 U.S. 747 (1982)............................. 19
New York Times Co. v. Sullivan,
376 U.S. 254 (1964)........................................................ 29, 30
Niemotko v. Maryland, 340 U.S. 268 (1951) ...................... 10
O’Neal v. State, 126 S.E. 863 (Ga. Ct. App. 1925) .............. 16
Pennock v. Dialogue, 27 U.S. (2 Pet.) 1 (1829) ................... 16
People v. Cross, 127 P.3d 71 (Colo. 2006) .............................. 5
People v. Croswell,
3 Johns. Cas. 337 (N.Y. Sup. Ct. 1804) ....................... 22, 23
People v. Loveridge, 42 N.W. 997 (Mich. 1889) .................. 22
Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767 (1986).............................................................. 30
Pope v. Illinois, 481 U.S. 497 (1987) .................................... 18
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ..... 2, 9, 10, 19
R.D., In re, 464 P.3d 717 (Colo. 2020) .................................... 6
Ragansky v. United States, 253 F. 643 (7th Cir. 1918)...... 27
Reg. v. Hill, (1851) 5 Cox C.C. 233 (Eng.). .......................... 15
Regina v. Grimwade,
(1844) 169 Eng. Rep. 137 (K.B.) ........................................ 15
Rex v. Boucher, (1831) 172 Eng. Rep. 826 (K.B.) ............... 14
Rex v. Paddle, (1822) 168 Eng. Rep. 910 (K.B.) ................. 15
Rex v. Philipps, (1805) 102 Eng. Rep. 1365 (K.B.) ............ 21
Rex v. Saunders, (1682) 83 Eng. Rep. 106 (K.B.) .............. 21
Rex v. Tyler, (1835) 168 Eng. Rep. 1330 (K.B.) .................. 14
Smith v. California, 361 U.S. 147 (1959)............................. 19
State v. Benedict, 11 Vt. 236 (1839) ...................................... 22
State v. Chaplinsky, 18 A.2d 754 (N.H. 1941), aff ’d,
315 U.S. 568 (1942).............................................................. 18
State v. Stewart, 2 S.W. 790 (Mo. 1887) ............................... 17
Tison v. Arizona, 481 U.S. 137 (1987) ................................. 29
United States v. Alvarez, 567 U.S. 709 (2012) .................... 26
VI
Cases—Continued:
Page
United States v. Kosma, 951 F.2d 549 (3d Cir. 1991) ...... 2, 3
United States v. Stevens, 559 U.S. 460 (2010) .................... 14
United States v. Williams, 553 U.S. 285 (2008) ................. 27
Virginia v. Black,
538 U.S. 343 (2003)............................... 2, 7, 10, 12, 13, 23-25
Voisine v. United States, 579 U.S. 686 (2016) .................... 28
Watts v. United States,
394 U.S. 705 (1969)................................. 2, 3, 7, 12, 13, 17, 23
Constitutions and statutes:
U.S. Const. Amend. I ..................... 1, 6-9, 14, 19-21, 26-28, 31
N.Y. Const. Art. VII, § 8 (1821) ........................................... 23
Daniel Anderl Judicial Security and Privacy Act
of 2022, Pub L. No. 117-263, Div. E, Tit. LIX,
Subtit. D, § 5932(a), 136 Stat 3458-3459 ............................. 3
18 U.S.C. 871 ............................................................................ 1
18 U.S.C. 871(a) (1964) .......................................................... 12
18 U.S.C. 875 ............................................................................ 1
18 U.S.C. 875(c)........................................................................ 4
18 U.S.C. 876 ............................................................................ 1
18 U.S.C. 878 ............................................................................ 1
1877 Ariz. Sess. Laws 90 ....................................................... 15
1850 Cal. Stat. 242-243 .......................................................... 15
Colo. Rev. Stat. § 18-3-602(1)(c) (2016) ................................. 5
1868 Colo. Sess. Laws 219 .................................................... 15
18 Del. Laws 450-451 (1887) ................................................. 15
1832 Fla. Laws 68-69 ............................................................. 15
1816 Ga. Laws 178 ................................................................. 15
1863 Idaho Sess. Laws 463-464 ............................................ 15
1826 Ill. Laws 145-146 ........................................................... 15
1838 Iowa Acts 161 ................................................................ 15
1816 Mich. Terr. Laws 128-129 ............................................ 15
VII
Statutes—Continued:
Page
Mo. Rev. Stat.:
ch. 47, art. VII, § 16 (1845) ............................................. 15
ch. 24, art. III, § 1306 (1879) .......................................... 17
1864 Mont. Laws 205 ............................................................. 15
1858 Neb. Laws 64 ................................................................. 15
1885 Nev. Stat. 39 .................................................................. 15
1795 N.J. Laws 108 ................................................................ 15
1860 Pa. Laws 390 ................................................................. 15
Va. Code Ann. § 18.2-423 (1996) ........................................... 23
1876 Wyo. Sess. Laws 267 .................................................... 15
1754, 27 Geo. II, c. 15 (Eng.)................................................. 14
Miscellaneous:
Jimmy Balser, Cong. Research Serv., Overview
of Federal Criminal Laws Prohibiting Threats
and Harassment of Election Workers (updated
Nov. 1, 2022), https://crsreports.congress.gov/
product/pdf/LSB/LSB10781 ................................................ 3
Mary P. Brewster, An Exploration of
the Experiences and Needs of Former
Intimate Stalking Victims (June 12, 1998),
https://perma.cc/Q6E3-2QNV ............................................. 2
2 William L. Clark & William L. Marshall,
A Treatise on the Law of Crimes (1900) .......................... 21
7 Nathan Dane, A General Abridgment
and Digest of American Law (1824)................................. 16
2 Edward Hyde East, A Treatise of the Pleas
of the Crown (1806) ............................................................. 15
Joint Counterterrorism Assessment Team,
Protection Considerations for Violent
Extremist Threats to Public Officials
(Feb. 17, 2022), https://perma.cc/XM4J-Q9CK ............. 3, 4
VIII
Miscellaneous—Continued:
Page
Model Penal Code (1985):
§ 2.02(2)(b)(ii) ................................................................... 29
§ 2.02(2)(c) .................................................................. 29, 31
Rachel E. Morgan & Jennifer L. Truman, Bureau of
Justice Statistics, Office of Justice Programs,
U.S. Dep’t of Justice, Stalking Victimization,
2019 (Feb. 2022), https://perma.cc/3MSM-NW6L ............ 3
National League of Cities, On the Frontlines of
Today’s Cities: Trauma, Challenges and Solutions
(2021), https://perma.cc/QPP2-HDHH........................... 3, 4
Press Release, U.S. Capitol Police,
USCP Threat Assessment Cases for 2022
(Jan. 17, 2023), https://perma.cc/2VT4-VXW6 ................... 3
Paul H. Robinson, A Brief History of
Distinctions in Criminal Culpability,
31 Hastings L.J. 815 (1980).......................................... 20, 21
Francesca Stevens et al., Cyber Stalking, Cyber
Harassment, and Adult Mental Health:
A Systematic Review, Cyberpsychology,
Behavior, and Social Networking, Vol. 24, No. 6
(June 14, 2021), https://perma.cc/3DWY-RCQQ ............... 2
J. W. C. Turner, The Mental Element in Crimes at
Common Law, 6 Cambridge L.J. 31 (1936) ..................... 21
Emily A. Vogels, Pew Research Ctr., The
State of Online Harassment (Jan. 13, 2021),
https://perma.cc/LZ3H-WFNP ........................................... 3
Francis Wharton, A Treatise on the Criminal
Law of the United States (1846) ........................................ 16
Monty Wilkinson, Introduction, U.S. Att’y’s Bulletin,
Vol. 64, No. 3 (May 2016), https://perma.cc/
WM94-ATYH ........................................................................ 3
25 Charles F. Williams, The American and English
Encyclopædia of Law (1894) ............................................. 16
In the Supreme Court of the United States
No. 22-138
BILLY RAYMOND COUNTERMAN, PETITIONER
v.
STATE OF COLORADO
ON WRIT OF CERTIORARI
TO THE COLORADO COURT OF APPEALS
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES
This case presents the question whether the First
Amendment precludes criminal conviction of a defendant who makes a communication that a reasonable person would understand as a threat of injury or death unless the prosecution can prove the defendant’s subjective intent or knowledge that it would be taken as such
a threat. The United States has a substantial interest
in the proper resolution of that question because the decision in this case may affect its authority to proscribe
and prosecute various kinds of threats, including threats
against the President and other public officials. See, e.g.,
18 U.S.C. 871, 875, 876, 878. The United States has previously participated in cases involving the First Amendment’s limits on statutes that criminalize threats. See,
(1)
2
e.g., Elonis v. United States, 575 U.S. 723 (2015); Virginia v. Black, 538 U.S. 343 (2003).
STATEMENT
1. This Court has repeatedly made clear that
“threats of violence are outside the First Amendment.”
R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992); see
Black, 538 U.S. at 359; Watts v. United States, 394 U.S.
705, 707-708 (1969) (per curiam). As the Court has recognized, such “true threats” have minimal (if any) expressive value, and they come at the considerable cost
of instilling fear in others, disrupting community life,
and increasing the potential for violence. Black, 538
U.S. at 360; see R.A.V., 505 U.S. at 388.
The injuries that true threats cause are many and
varied. There are psychological harms: the victim (and
those close to her) may feel terror, suffer emotional distress, experience anxiety or depression, or withdraw
from people or places out of fear. 1 There are economic
harms: the victim and law enforcement agencies may
expend significant resources assessing the threat and
attempting to protect against its perceived dangers; victims, in particular, may take steps such as changing
their phone numbers, missing work, losing employment
opportunities, or moving.2 And there are still other,
contextual harms: for example, threats of violence
against public officials may interfere with their ability
1
See Francesca Stevens et al., Cyber Stalking, Cyber Harassment, and Adult Mental Health: A Systematic Review, Cyberpsychology, Behavior, and Social Networking, Vol. 24, No. 6 (June 14,
2021), https://perma.cc/3DWY-RCQQ.
2
See Mary P. Brewster, An Exploration of the Experiences and
Needs of Former Intimate Stalking Victims 59-63 (June 12, 1998),
https://perma.cc/Q6E3-2QNV; see also United States v. Kosma, 951
F.2d 549, 557 (3d Cir. 1991).
3
or willingness to carry out their responsibilities,3 and
threats of violence “are among the most favored weapons of domestic abusers,” Elonis, 575 U.S. at 748 (Alito,
J., concurring in part and dissenting in part).4
The internet and social media have expanded not
only the number of violent threats but also their reach
and effect, enabling activities including online harassment, intimidation, and stalking. 5 The increased prevalence of threats may have a compounding effect: threats
beget more threats. 6 Threats of violence against public
officials in particular have proliferated in recent years,
including threats against Members of Congress, judges,
local officials, and election workers.7
3
See Watts, 394 U.S. at 707; Kosma, 951 F.2d at 556; National
League of Cities, On the Frontlines of Today’s Cities: Trauma,
Challenges and Solutions 24-27 (2021) (On the Frontlines),
https://perma.cc/QPP2-HDHH.
4
See Rachel E. Morgan & Jennifer L. Truman, Bureau of Justice
Statistics, Office of Justice Programs, U.S. Dep’t of Justice, Stalking Victimization, 2019 (Feb. 2022), https://perma.cc/3MSMNW6L.
5
See Emily A. Vogels, Pew Research Ctr., The State of Online
Harassment 4, 15-16 (Jan. 13, 2021), https://perma.cc/LZ3HWFNP; Monty Wilkinson, Introduction 3-7, 11, U.S. Att’y’s Bulletin, Vol. 64, No. 3 (May 2016), https://perma.cc/WM94-ATYH.
6
See Joint Counterterrorism Assessment Team, Protection Considerations for Violent Extremist Threats to Public Officials
3 (Feb. 17, 2022) (Protection Considerations), https://perma.cc/
XM4J-Q9CK.
7
See Daniel Anderl Judicial Security and Privacy Act of 2022,
Pub L. No. 117-263, Div. E, Tit. LIX, Subtit. D, § 5932(a), 136 Stat
3458-3459; Press Release, U.S. Capitol Police, USCP Threat Assessment Cases for 2022 (Jan. 17, 2023), https://perma.cc/2VT4-VXW6;
Jimmy Balser, Cong. Research Serv., Overview of Federal Criminal Laws Prohibiting Threats and Harassment of Election
4
2. Petitioner has a two-decade history of threatening violence. In 2003, petitioner was convicted on ten
counts of making threatening communications in interstate commerce, in violation of 18 U.S.C. 875(c). 02-cr484 D. Ct. Doc. 27 (N.D.N.Y. Nov. 22, 2004). Then in
2011, petitioner called a family member and threatened
to “make a trip back East,” “put your head on a fuckin[g]
sidewalk block” and “bash it in,” and “rip your throat out
on sight.” 11-cr-133 D. Ct. Doc. 11, at 3-4 (N.D.N.Y. June
28, 2011); see 11-cr-133 D. Ct. Doc. 22, at 3, 5-6 (N.D.N.Y.
Nov. 30, 2011). He was charged with, and pleaded guilty
to, an eleventh count of violating Section 875(c) for that
threat. 11-cr-133 D. Ct. Doc. 27, at 1 (Apr. 17, 2013).
Petitioner carried out his latest course of threatening behavior from 2014 to 2016, while on supervised release from his most recent federal conviction. J.A. 401,
428. His conduct included sending hundreds of direct
Facebook messages to a local singer-songwriter, C.W.
Pet. App. 6a-7a; J.A. 128, 429. Petitioner’s messages
were “uninvited, and C.W. didn’t send any messages
back” or otherwise “engage in a conversation with him.”
Pet. App. 16a. Instead, C.W. “blocked [petitioner] on
Facebook multiple times to prevent him from sending
her messages.” Id. at 3a. But when she did so, he simply
“create[d] new Facebook accounts and continue[d] to
send her messages.” Ibid.
Petitioner’s messages repeatedly indicated that he
was surveilling or watching C.W. Pet. App. 6a-7a. For
example, he noted “a couple [of] physical sightings”; referenced a “fine display with your partner”; and asked
“[w]as that you in the white Jeep?” Ibid. Petitioner told
Workers 1 (updated Nov. 1, 2022), https://crsreports.congress.gov/
product/pdf/LSB/LSB10781; Protection Considerations at 3; On
the Frontlines at 10-14.
5
C.W. to “[f ]uck off permanently” and “[d]ie,” warning
her that “[s]taying in cyber life is going to kill you.” Id.
at 7a.
As a result of petitioner’s messages, C.W. “was very
fearful that [petitioner] was following [her] in person.”
J.A. 181; see J.A. 140-144, 194. She also was “afraid
[she] would get hurt,” J.A. 193, and believed that petitioner was “threat[ening] [her] life,” J.A. 177. See J.A.
173, 178, 205. Petitioner’s messages caused C.W. to develop increased anxiety and “a lot of trouble sleeping.”
J.A. 200; see J.A. 194-198, 253-254.
In addition, C.W. started taking preventative protective measures, such as never walking alone, buying pepper spray, and hiring extra security for a musical performance. J.A. 182-183, 204-206, 237, 253. C.W. even
canceled some of her performances due to fear stemming from petitioner’s repeated and threatening communications. J.A. 201-203, 238-239, 247-248.
3. Colorado charged petitioner with, inter alia, stalking (serious emotional distress), in violation of Colorado
Revised Statute § 18-3-602(1)(c) (2016). Pet. App. 2a, 4a.
Section 18-3-602(1)(c) defines stalking to include “knowingly * * * [r]epeatedly follow[ing], approach[ing], contact[ing], plac[ing] under surveillance, or mak[ing] any
form of communication with another person * * * in a
manner that would cause a reasonable person to suffer
serious emotional distress and does cause that person
* * * to suffer serious emotional distress.”
In accord with the Colorado Supreme Court’s exposition of statutory and constitutional requirements, the
issue of whether petitioner’s communications were true
threats was litigated on an “objective ‘reasonable person’ standard,” People v. Cross, 127 P.3d 71, 76 (2006)
(en banc), that did not require proof of a “subjective
6
intent to threaten,” In re R.D., 464 P.3d 717, 731 n.21
(2020) (en banc). The trial court, after “consider[ing]
the totality of the circumstances,” found that petitioner’s “statements rise to the level of a true threat.”
Pet. App. 49a; see id. at 45a-49a. The jury subsequently
found petitioner guilty of the stalking offense. See id.
at 5a.
The Colorado Court of Appeals affirmed. Pet. App.
1a-39a. In considering petitioner’s as-applied First
Amendment claim, the Colorado Court of Appeals emphasized that, “[p]articularly where the alleged threat
is communicated online,” application of the Colorado
stalking statute must account for a number of contextual factors, including:
(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 the recipient(s); and (5) the subjective reaction of the statement’s intended or foreseeable recipient(s).
Id. at 12a-13a (quoting In re R.D., 464 P.3d at 721-722).
After extensively considering those contextual factors
here, id. at 14a-21a, the court found that petitioner’s
messages “were true threats that aren’t protected under the First Amendment,” id. at 21a.
The Colorado Supreme Court denied review. Pet.
App. 40a.
7
SUMMARY OF ARGUMENT
The state courts correctly denied petitioner immunity from criminal liability for sending messages that a
reasonable person would understand as threats unless
the State can prove that he intended or knew that they
would be taken that way. A defendant’s unreasonable
subjective beliefs, or the mere inability of a prosecutor
to conclusively disprove them, are not a license to inspire fear in others.
This Court has long classified “true threats” of violence as outside the First Amendment’s protections.
See, e.g., Virginia v. Black, 538 U.S. 343, 359-360 (2003).
As the Court has recognized, statements that, after full
consideration of their language and context, will reasonably be understood as violent threats have minimal (if
any) legitimate expressive value and cause substantial
harms to their victims and to society more generally.
The Court has accordingly analyzed the threatening nature of a communication by examining its content and
context, rather than what the defendant may silently
have been thinking. See Watts v. United States, 394 U.S.
705 (1969) (per curiam). And threats have been punishable regardless of the speaker’s subjective intent since
the time of the Founding.
This Court has not required proof of a particular subjective intent for prohibitions on speech similar to true
threats, such as fighting words, obscenity, and child
pornography. Like those other categories of unprotected speech, threatening language has minimal expressive value and causes substantial societal harms.
Those harms are inherent to true threats and in no way
turn on a speaker’s subjective intent. Law enforcement,
victims, and society will not be aware of a defendant’s
unreasonable subjective views and cannot be expected
8
to ignore objectively apparent threats based on the possibility that the threatener privately and unreasonably
does not view them as such.
Petitioner fails to provide any sound basis why criminal conviction for the harms that threats inflict should
turn on the possibility that he harbored an unreasonable mindset. He lacks foundation for his broad claim
that threat prosecutions historically required proof of
an intent to threaten. This Court’s precedents likewise
do not support the substantial impediment that he would
impose on the regulation of fear-inducing behavior. And
petitioner’s concerns about chilling public discourse are
overblown. Juries that consider and courts that review
the full language and context of a statement are capable
of distinguishing between threatening speech and expressions of strong emotion, religious enthusiasm, artistic expression, or hyperbole.
If the Court nonetheless concludes that defendants
who make objectively threatening statements need
more breathing room for legitimate expression, a mens
rea of recklessness would suffice. Society should not
have to bear the cost of those who consciously disregard
the substantial risk that they are making threats. Reckless conduct has traditionally been viewed as morally
culpable, and the First Amendment framework for
criminal and civil liability for defamatory speech has
successfully incorporated recklessness. Indeed, a similar framework for true threats would be more than sufficient even if true threats were protected by the First
Amendment because no narrower means are available
to address the government’s compelling interest in protecting its citizens and communities from unnecessary
fear and corollary harm.
9
ARGUMENT
A DEFENDANT CANNOT CLAIM IMMUNITY TO MAKE
VIOLENT THREATS UNDER THE FIRST AMENDMENT
BASED ON HIS SUBJECTIVE MINDSET
The “ ‘freedom of speech’ referred to by the First
Amendment does not include a freedom to disregard
* * * traditional limitations” on certain categories of
unprotected speech. R.A.V. v. City of St. Paul, 505 U.S.
377, 383 (1992). Those categories include “threats of violence,” which are “outside” the First Amendment because of society’s overwhelming interests in “protecting
individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that
the threatened violence will occur.” Id. at 388. None of
those interests depends on a defendant’s subjective intent or knowledge, and the definition of a true threat
should not depend on a prosecutor’s ability to conclusively disprove a defendant’s subjective beliefs.
A. A “True Threat” Is Defined By How A Reasonable Person Would Understand A Statement’s Content And Context, Not The Ability To Disprove A Defendant’s Unreasonable Views Of How A Statement Would Be Perceived
Both history and this Court’s decisions indicate that
a threat of violence may be criminally punished with
proof of “general intent,” i.e., “knowledge with respect
to the actus reus of the crime.” Carter v. United States,
530 U.S. 255, 268 (2000) (emphasis omitted). Such general intent encompasses an understanding of the meaning of the words that the speaker used and the context
in which he deliberately used them. But the First
Amendment does not provide a defendant with immunity for a true threat simply because he may have held an
unreasonable subjective belief that his words should not
10
or would not be taken to mean what, in context, they
said.
1. A statement that, based on its content and context, is
threatening to a reasonable person has minimal expressive value and is inherently harmful irrespective of the speaker’s private views
Statements that are threatening to a reasonable person, even in light of any ameliorating context, have little
if any legitimate expressive value. Like other forms of
unprotected speech, they “constitute ‘no essential part
of any exposition of ideas,’ ” but are instead an inherently harmful type of communication. R.A.V., 505 U.S.
at 385 (citation and emphasis omitted).
Such statements do not invite debate and are not
readily subject to counterspeech. Words that a reasonable person would, in context, understand as an actual
threat to life or limb do not provide fodder for further
discussion and cannot simply be shouted down by others. Instead, they are “features” of speech that, “despite their verbal character,” are “essentially a ‘nonspeech’ element of communication.” R.A.V., 505 U.S. at
386. “[T]heir content,” such as it is, “embodies a particularly intolerable (and socially unnecessary) mode of
expressing whatever idea the speaker wishes to convey.”
Id. at 393 (emphasis omitted). That “ ‘mode of speech’ ”
does not “ha[ve], in and of itself, a claim upon the First
Amendment.” Id. at 386 (quoting Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (Frankfurter, J., concurring in the result)).
This Court’s recognition that threats of violence
cause substantial harms, including “the fear of violence”
and “the disruption that [such] fear engenders,” Virginia v. Black, 538 U.S. 343, 360 (2003) (citation omitted), has ample empirical support. See pp. 2-3, supra.
11
An expression of dissatisfaction with a school or church
gains nothing of value from its packaging as a statement
that a reasonable person would interpret as a real
threat to hurt or kill the students or parishioners. Instead, it creates fear in the targets of the threat, forcing
them, and those charged with protecting them, to bear
the cost of responsible precautions.
The harms of a true threat are inherent in the threat
itself and in no way depend on the threatener’s subjective intent or knowledge. The source of those harms lies
not in the private recesses of the defendant’s mind, but
in what he actually communicated, as viewed in the context in which he communicated it. As the Court has recognized, “an anonymous letter that says ‘I’m going to
kill you’ is ‘an expression of an intention to inflict loss
or harm’ regardless of the author’s intent” to actually
kill the victim. Elonis v. United States, 575 U.S. 723,
733 (2015). “A victim who receives that letter in the mail
has received a threat, even if the author believes
(wrongly) that his message will be taken as a joke.”
Ibid.
By definition, it is reasonable for the target of such a
letter, or another statement that a reasonable person
would understand as a threat, to be afraid. Were she
not, that would itself be an indication that the statement
is not actually one that a reasonable person would necessarily understand as threatening. Similarly, in responding to a message that is reasonably understood as
a threat, the officials charged with protecting local
schools, places of worship or business, and homes do not
have the luxury of considering what the threatener
might privately have known or intended when he sent
that message. They must respond to a realistic threat,
and incur the costs of doing so, regardless of what the
12
speaker might have been thinking. That is what society
expects of them, and they would not be forgiven the
harms that they would otherwise invite. Neither should
the speaker who is the source of those harms.
2. The definition of a true threat, like the harms that it
causes, is based on how a reasonable person would
understand it
Tracking the harms that they cause, true threats are
defined in objective terms as statements that “communicate a serious expression of an intent to commit an
act of unlawful violence to a particular individual or
group of individuals.” Black, 538 U.S. at 359. A legislature can choose to engraft, or be presumed to have
engrafted, a subjective mens rea onto a criminal prohibition of such threats. See Elonis, 575 U.S. at 737.
But such a legislative mens rea requirement is an addition to, rather than part of, the definition of a true
threat.
The Court’s decision in Watts v. United States, 394
U.S. 705 (1969) (per curiam), illustrates the distinction.
Watts involved a prosecution for “knowingly and willfully making any threat to take the life of or to
inflict bodily harm upon on the President.” Id. at 705
(quoting 18 U.S.C. 871(a) (1964)) (ellipsis and brackets
omitted). In assessing the validity of the conviction
there, the Court separated “whatever * * * ‘willfulness’
require[s]” from what “the statute initially require[d]”:
namely, proof of “a true ‘threat.’ ” Id. at 708. The former was a legislative limitation; only the latter was a
constitutional one. See ibid.
Accordingly, the Court did not look to the defendant’s mindset to determine whether his statement—
that “[i]f they ever make me carry a rifle the first man
I want to get in my sights is L.B.J.,” Watts, 394 U.S. at
13
706—qualified as a true threat. See id. at 708. Instead,
the Court found that “[t]aken in context, and regarding
the expressly conditional nature of the statement and
the reaction of the listeners,” who laughed in response,
the defendant’s pronouncement amounted only to “ ‘a
kind of very crude offensive method of stating a political
opposition to the President.’ ” Ibid. Such a statement
of mere jest, “political hyperbole,” or “ ‘vehement, caustic’ ” or “ ‘unpleasantly sharp attacks’ ” would not be understood, in context, as a harmful true threat of violence. Ibid. (citation omitted).
As Watts demonstrates, context is frequently an
ameliorating factor that precludes successful prosecution for a statement that, on its face, might otherwise
have come across in an objectively threatening fashion.
It is presently undisputed, however, that the language
and context of petitioner’s Facebook stalking would be
understood by a reasonable person as a threat. To the
extent that petitioner might have harbored some subjective and unreasonable belief that his messages would
not be understood as threatening, that belief cannot
override what he plainly communicated: “a serious expression of an intent to commit an act of unlawful violence.” Black, 538 U.S. at 359.
3. Threats have historically been prohibited without
requiring proof of a defendant’s subjective intent or
knowledge
Prohibition of true threats, as defined by a reasonable person’s understanding, was well within the contemplation of the Framers. Legislative proscription and
punishment of threats without requiring proof of the
threat-maker’s subjective mindset dates back to the
Eighteenth Century. See Kansas v. Boettger, 140 S. Ct.
1956, 1957-1958 (2020) (Thomas, J., dissenting from the
14
denial of certiorari); see also United States v. Stevens,
559 U.S. 460, 468-470 (2010) (looking to history to inform First Amendment analysis).
In 1754, the English Parliament enacted a statute
making it a capital offense to “knowingly send any letter
* * * threatening to kill or murder any of his Majesty’s
subject or subjects, or to burn their houses” or other
things, “though no money or venison, or other valuable
thing shall be demanded.” 27 Geo. II, c. 15 (capitalization omitted). Conviction under that statute, which included no explicit intent-to-threaten requirement, demanded only that the letter contained language conveying a threat and that the defendant knew the contents
of the letter.
In King v. Girdwood, (1776) 168 Eng. Rep. 173 (K.B.),
for example, the trial court instructed the jurors that to
determine whether the defendant violated the statute
they should assess “[w]hether they thought the terms
of the letter conveyed an actual threat to kill or murder.” Id. at 173. “[I]f they were of [the] opinion that it
did, and that the [defendant] knew the contents of it,
they ought to find him guilty; but * * * if they thought
he did not know the contents, or that the words might
import any thing less than to kill or murder, they ought
to acquit.” Ibid. On appeal following conviction, the reviewing judges “thought that the case had been properly
left to the [ j]ury.” Id. at 174.
Other cases similarly focused on the language of the
letter at issue, not the state of mind of the sender, in analyzing the existence of a threat. See Rex v. Tyler, (1835)
168 Eng. Rep. 1330 (K.B.) 1331 (considering whether the
“letter threatened” arson); Rex v. Boucher, (1831) 172
Eng. Rep. 826 (K.B.) 827 (considering whether the letter
“plainly convey[ed] a threat to kill and murder,” with no
15
discussion of subjective intent); Rex v. Paddle, (1822)
168 Eng. Rep. 910 (K.B.) 911 (considering only whether
the defendant “intended” the letter to be delivered to
the individuals he was threatening); 2 Edward Hyde
East, A Treatise of the Pleas of the Crown 1115-1116
(1806) (considering the letter’s “necessary construction” and how it “must be understood” in Jepson &
Springett’s Case); cf. Regina v. Grimwade, (1844) 169
Eng. Rep. 137 (K.B.) 138-139 (focusing on the intent to
send a letter, without discussing subjective intent to
threaten, under a similar English statute). Petitioner’s
only example (Br. 16) of an English threatening-letter
case considering a defendant’s self-professed intent is
one that appears to have done so only in determining
whether there was “a construction which could be fairly
put on the letter consistent with [defendant’s] view of the
case.” Reg. v. Hill, (1851) 5 Cox C.C. 233, 235 (Eng.).
Between 1795 and 1887, 17 States and Territories enacted laws similar to the English prohibition on threatening letters.8 The relevant statutes typically prohibited letters containing certain types of threats made
with intent to extort, as well as letters containing certain other types of threats irrespective of intent. See,
e.g., 1795 N.J. Laws 108 (making it a misdemeanor for
any person to “knowingly send or deliver any letter
* * * threatening to accuse any person of a crime * * *
with intent to extort from him or her any * * * valuable
See 1795 N.J. Laws 108; 1816 Ga. Laws 178; 1816 Mich. Terr.
Laws 128-129; 1826 Ill. Laws 145-146; 1832 Fla. Laws 68-69; 1838
Iowa Acts 161; Mo. Rev. Stat., ch. 47, art. VII, § 16 (1845); 1850 Cal.
Stat. 242-243; 1858 Neb. Laws 64; 1860 Pa. Laws 390; 1863 Idaho
Sess. Laws 463-464; 1864 Mont. Laws 205; 1868 Colo. Sess. Laws
219; 1876 Wyo. Sess. Laws 267; 1877 Ariz. Sess. Laws 90; 1885 Nev.
Stat. 39; 18 Del. Laws 450-451 (1887).
8
16
thing; or threatening to maim, wound, kill or murder
any person, or to burn” structures or other things,
“though no money, goods or chattels, or other valuable
thing be demanded”) (emphasis added).
Particularly in light of the similarity between those
prohibitions and the 1754 English statute, courts in the
relevant States presumably applied the “known and
settled construction” adopted by English courts—
which, as discussed, did not require proof of an intent
to threaten. Pennock v. Dialogue, 27 U.S. (2 Pet.) 1, 2
(1829); see, e.g., Commonwealth v. Burdick, 2 Pa. 163,
164-165 (1845) (considering English cases persuasive
authority in interpreting state statute). Domestic case
law, while sparse, is consistent with the absence of
an intent-to-threaten requirement. See, e.g., O’Neal v.
State, 126 S.E. 863, 864 (Ga. Ct. App. 1925) (considering
sufficiency of evidence to support jury’s determination
that the defendant “knowingly sen[t] or deliver[ed]” a
letter without considering subjective intent); Hansen v.
State, 34 S.W. 929, 929 (Tex. Crim. App. 1896) (reasoning that a charge of sending a letter with intent to kill
or injure required that “the letter clearly contain[] a
threat”) (emphasis added).
The purportedly contrary treatises cited by petitioner (Br. 16-18) primarily discuss prohibitions on
threats made in order to extort money or things of
value, which expressly required proof of intent—not the
distinct prohibitions on threatening letters that contained no such requirement. See 7 Nathan Dane, A
General Abridgment and Digest of American Law 2833 (1824) (primarily discussing threats with intent to extort); 25 Charles F. Williams, The American and English Encyclopædia of Law 1068-1073 (1894) (same); see
also Francis Wharton, A Treatise on the Criminal Law
17
of the United States 169 (1846) (failing to distinguish
between the two types of prohibitions). Of the two
American cases on which petitioner relies (Br. 18), one
involved an express “intent to extort” element, State v.
Stewart, 2 S.W. 790, 791 (Mo. 1887) (quoting Mo. Rev.
Stat., ch. 24, art. III, § 1306 (1879)), while the other involved a statute construed, for state-law purposes, to
prohibit “conspir[ing], confederati[ng], or banding together for the purpose of intimidating, alarming, disturbing, or injuring another person,” Commonwealth v.
Morton, 131 S.W. 506, 507 (Ky. Ct. App. 1910) (citing
Commonwealth v. Patrick, 105 S.W. 981 (Ky. Ct. App.
1907)) (emphasis added). And petitioner’s citation of
two States’ adoption of statutes requiring that prohibited threats be made “maliciously” (Br. 18) does not
suggest that the practices of many other States, and
their historical antecedents, impermissibly infringed on
freedom of speech.
“In short, there is good reason to believe that States
* * * long ago enacted general-intent threat statutes”
and did so without perceiving a conflict between such
statutes and the provisions in “their own Constitutions
[that] protect freedom of speech.” Elonis, 575 U.S. at
763 (Thomas, J., dissenting).
4. Other forms of unprotected speech are likewise defined in objective terms
The objective definition of true threats is of a piece
with the objective definition of other forms of unprotected speech. As the Court has recognized in multiple
contexts, courts should not unduly constrain legislatures with constitutional mens rea requirements on the
regulation of speech that is inherently harmful and not
adjacent to socially valuable advocacy.
18
The Court has, for example, defined unprotected
“ ‘fighting words’ ” as those “personally abusive epithets
which, when addressed to the ordinary citizen are, as a
matter of common knowledge, inherently likely to provoke violent reaction.” Cohen v. California, 403 U.S. 15,
20 (1971) (emphasis added; citation omitted). The Court
has accordingly upheld a fighting-words prohibition
where “[t]he test [wa]s what men of common intelligence
would understand would be words likely to cause an average addressee to fight.” Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942); see ibid. (referring to
“words and expressions which by general consent are
‘fighting words’ when said without a disarming smile”
and that “as ordinary men know, are likely to cause a
fight”); see also State v. Chaplinsky, 18 A.2d 754, 758
(N.H. 1941) (“[T]he only intent required for conviction
* * * was an intent to speak the words.”), aff ’d, 315 U.S.
568 (1942). The Court has also referenced approvingly
the “many” decisions holding that someone may be convicted for “breach of the peace” if he “make[s] statements likely to provoke violence and disturbance of good
order, even though no such eventuality be intended.”
Cantwell v. Connecticut, 310 U.S. 296, 309 (1940).
The unprotected speech categories of obscenity and
child pornography are likewise defined in solely objective terms. The characterization of materials as obscene depends on a reasonable person’s perspective—
not the speaker’s. See Miller v. California, 413 U.S. 15,
24, 27 (1973) (three-prong test for obscenity); Pope v.
Illinois, 481 U.S. 497, 500-501 (1987) (explaining that
“the first and second prongs * * * are issues of fact for
the jury to determine applying contemporary community standards” and that a “reasonable person” standard defines the third). And the Court has defined child
19
pornography by “adjust[ing]” and loosening the test for
obscenity. New York v. Ferber, 458 U.S. 747, 764-765
(1982).
The Court has not interpreted the First Amendment
to require subjective awareness as a prerequisite to the
regulation of either. Although a State may not impose
strict liability on a bookseller for selling obscene materials, the Court has left open whether an “honest mistake as to whether [a book’s] contents in fact constituted
obscenity need be an excuse[] [or] whether there might
be circumstances under which the State constitutionally
might require that a bookseller investigate further, or
might put on him the burden of explaining why he did
not.” Smith v. California, 361 U.S. 147, 154 (1959); see
Ferber, 458 U.S. at 765 (same framework for child pornography); Hamling v. United States, 418 U.S. 87, 115,
121-124 (1974) (reiterating limits of Smith); see also
Elonis, 575 U.S. at 739-740 (rejecting government’s reliance on Hamling as endorsing objective mens rea for
federal statutory purposes).
Just as a speaker’s mental idiosyncrasies do not define whether he is purveying (let alone has created)
child pornography or obscenity, they do not define a
true threat. See Elonis, 575 U.S. at 767 (Thomas, J.,
dissenting) (noting that had the defendant “mailed obscene materials to his wife and a kindergarten class, he
could have been prosecuted irrespective of whether he
intended to offend those recipients” and that it “should
not[] be the case” that “when he threatened to kill his
wife and a kindergarten class, his intent to terrify those
recipients * * * suddenly becomes highly relevant”).
Like a prohibition of fighting words, a prohibition of true
threats regulates a “mode of speech,” rather than anything with legitimate expressive value. R.A.V., 505 U.S.
20
at 386 (analogizing regulation of fighting words to regulation of “a noisy sound truck”) (citation omitted). It is
accordingly a type of prohibition that need not turn on
a defendant’s unreasonable subjective mindset.
B. Petitioner’s Arguments For A Specific Intent Or
Knowledge Requirement Lack Merit
Petitioner nevertheless advances a rule that the First
Amendment prohibits the regulation of threats unless
the speaker intended to place the target in fear or knew
that his threat would do so. But such a rule has no basis
in history, this Court’s decisions, or general concerns
about chilling protected speech.
1. Petitioner misinterprets the historical sources
The sources on which petitioner relies do not support
his broad claim that threat prosecutions historically required proof of intent to threaten. As previously discussed, analogous restrictions on threatening letters
did not require proof of specific intent to threaten under
either English or American law. And petitioner’s reliance (Br. 15-16, 18-20) on general common-law principles, prosecutions for breach of the peace, and the history of libel prosecutions is misplaced.
The common law at the time of the Founding did not
generally require proof of specific intent in criminal
cases. Rather, it often used “a purely objective standard to presume a subjective state of mind and hence wilful and reckless conduct,” although that presumption
ultimately evolved into a “rebuttable” one. Paul H. Robinson, A Brief History of Distinctions in Criminal Culpability, 31 Hastings L.J. 815, 839 (1980). Indeed, “historical evidence suggests that courts were unable
to undertake [a] subjective inquiry until relatively recently” because such inquiry was thought to be “beyond
21
the power of juries” and the introduction of evidence
that would be “most relevant to the subjective inquiry”
was barred. Id. at 844-845 (emphasis omitted); see J.
W. C. Turner, The Mental Element in Crimes at Common Law, 6 Cambridge L.J. 31, 33 (1936) (noting “the
practice of imputing mens rea from certain given sets
of circumstances” and “the well-established rule that a
man is presumed to intend the natural consequences of
his acts”).
Petitioner’s focus (Br. 16, 18-19) on early prohibitions on breaching the peace is similarly misguided.
Those prohibitions included what today are termed
“fighting words,” while also encompassing other offenses
that did not involve speech. See Cantwell, 310 U.S. at
308; see also 2 William L. Clark & William L. Marshall,
A Treatise on the Law of Crimes § 417, at 983-985 (1900).
None of the cases that petitioner cites (Br. 16, 18-19)
establishes a broad historical practice—which would
conflict with this Court’s own practice under the First
Amendment, see p. 18, supra—of requiring specific intent to convict someone of such a fighting-words offense.
To the contrary, the lone English case on which petitioner relies states that the requisite “intent” could be
“self-proved” by “the letter of provocation and insult in
which it is conveyed.” Rex v. Philipps, (1805) 102 Eng.
Rep. 1365 (K.B.) 1369. Other English decisions likewise
indicate that subjective intent was not required in
breach-of-the-peace cases. In Rex v. Saunders, (1682)
83 Eng. Rep. 106 (K.B.), for example, the court rejected
a breach-of-the-peace defendant’s argument that “the
substance of the letter” he had written was “not scandalous,” and instead upheld the prosecution because
“[t]he letter [wa]s provocative.” Id. at 106.
22
Nor do the state cases cited by petitioner show a general shift in focus toward a defendant’s subjective intent.
In People v. Loveridge, 42 N.W. 997 (Mich. 1889), the
justices focused primarily on the content, context, and
result, not the intent, of peace-breaching speech, see,
e.g., id. at 998-999 (opinion of Campbell, J.), and the only
opinion joined by a majority of them stated that “[i]f
what is done is unjustifiable and unlawful, tending with
sufficient directness to break the peace, no more is required,” id. at 1000 (opinion of Long, J.). And State v.
Benedict, 11 Vt. 236 (1839), involved the interpretation
of one particular state statute—and explicitly distinguished “[t]he sending of threatening letters” as “an offence of a different character.” Id. at 239; see id. at 238239.
Petitioner’s reliance on defamation law (Br. 19-20)
is equally unsound. Even if viewed in purely modern
terms, defamation law supports at most a recklessness
requirement. See Gertz v. Robert Welch, Inc., 418 U.S.
323, 334 (1974); see also pp. 28-31, infra. Historically,
however, not even that was required. Instead, “[t]he
common law of libel at the time the First and Fourteenth Amendments were ratified” generally only required proof of “ ‘a false written publication that subjected [the defamed individual] to hatred, contempt, or
ridicule’ ”; “[m]alice was presumed in the absence of an
applicable privilege, right, or duty.” McKee v. Cosby,
139 S. Ct. 675, 678 (2019) (Thomas, J., concurring in the
denial of certiorari) (citation omitted).
The Supreme Court of New York’s equally divided
decision in People v. Croswell, 3 Johns. Cas. 337 (1804),
does not show otherwise. See McKee, 139 S. Ct. at 681
(Thomas, J., concurring in the denial of certiorari) (citing
Croswell). The specific charge there required “seditious
23
intention,” Croswell, 3 Johns. Cas. at 364 (opinion of
Kent, J.) (emphasis omitted); the case principally addressed whether particular issues should go to the court
or the jury, see id. at 363-364; and the subsequent state
constitutional amendment was likewise primarily procedural and mandated acquittal only when “the matter
charged as libelous” both “is true, and was published
with good motives, and for justifiable ends,” N.Y. Const.
Art. VII, § 8 (1821) (emphasis added). Nothing therein
immunizes a defendant who sends out a communication
that a reasonable person would interpret as a threat.
2. Petitioner overreads this Court’s decisions
Petitioner errs in claiming (Br. 24) that this Court’s
prior decisions addressing true threats are “best read[]”
as imposing a requirement that the speaker specifically
intended to place the victim in fear. As discussed earlier, see pp. 12-13, supra, Watts drew a distinction between statutory mens rea requirements and the constitutional definition of true threats—with the latter defined solely based on language and circumstance. See
394 U.S. at 708. And as petitioner acknowledges (Br.
28), the Court resolved Elonis v. United States on
statutory-interpretation grounds—specifically, a presumption as to legislative intent—rendering it “not necessary to consider any First Amendment issues.” 575
U.S. at 740. The opinions in Virginia v. Black, supra,
and petitioner’s analogies to other contexts, are likewise unsupportive of his position.
a. In Black, the Court held that a Virginia statute
banning cross-burnings with “an intent to intimidate
a person or group of persons” was not impermissibly
content-based. 538 U.S. at 347 (quoting Va. Code Ann.
§ 18.2-423 (1996)); see id. at 360-363. In so holding, the
Court reaffirmed that “the First Amendment * * *
24
permits a State to ban a ‘true threat,’ ” id. at 359 (citation omitted), and explained that Virginia’s prohibition
regulated a type of unprotected speech particularly
“likely to inspire fear of bodily harm,” id. at 363. A plurality of the Court concluded, however, that the statute’s presumption that the burning of a cross was
“prima facie evidence of an intent to intimidate,” as interpreted by the jury instructions given in one of the
defendant’s cases, rendered the statute unconstitutional.
Ibid. (plurality opinion) (citation omitted). The plurality
reasoned that because some cross-burnings may be protected “political speech” rather than “constitutionally
proscribable intimidation,” the instruction’s application
of the presumption “strips away the very reason why a
State may ban cross burning with the intent to intimidate.” Id. at 365.
Contrary to petitioner’s suggestion (Br. 26-27), the
Court did not incidentally and unnecessarily impose a
subjective-intent requirement on prosecutions for true
threats. The Court instead simply noted that the category of “ ‘[t]rue threats’ encompass[ed]” a prohibition,
like Virginia’s, on “those statements where the speaker
means to communicate a serious expression of an intent
to commit an act of unlawful violence.” Black, 538 U.S.
at 359. But nobody disputes that, as the Court observed, a statement made “with the intent of placing the
victim in fear of bodily harm or death” is a “type of true
threat.” Id. at 360 (emphasis added). And because the
Virginia statute at issue banned only a particular type
of intimidation (itself only a subset of true threats), the
Court had no occasion to consider whether a legislature’s constitutional authority to ban true threats is categorically constrained by a speaker’s subjective intent.
25
Petitioner similarly errs in inferring (Br. 27) the existence of a constitutional subjective-intent requirement
from Black’s holding with respect to the prima-facieevidence provision. The plurality reasoned that, because
cross-burning can have a protected political meaning, a
ban on that activity must exclude its protected forms
from prosecution, and observed that Virginia’s method
of achieving that goal was to single out cross-burners
who engage in intentional intimidation. See Black, 538
U.S. at 365-366 (plurality opinion); see also id. at 385386 (Souter, J., concurring in the judgment in part
and dissenting in part). But because the prima-facieevidence provision’s construction effectively eliminated
the statute’s requirement to prove intent, it had largely
neutralized Virginia’s own limitation, thereby allowing
conviction for burning a cross in the context of a movie,
a play, or other situation in which a reasonable observer
would have understood the act not to be threatening.
See id. at 366 (plurality opinion).
Moreover, the Court in Black reiterated the governmental interests that “a prohibition on true threats”
serves—protecting individuals from “ ‘the possibility
that the threatened violence will occur,’ ” “ ‘the fear of violence,’ ” and “ ‘the disruption that fear engenders,’ ” 538
U.S. at 360 (citation omitted)—none of which depend on
a speaker’s intent. Indeed, even as it listed the “ ‘possibility that the threatened violence will occur’ ” as one of
the reasons legislatures may proscribe such threats,
Black emphasized that a “speaker need not” have a subjective intent “to carry out the threat.” Ibid. (citation
omitted). Black accordingly erects no constitutional impediment to a differently crafted prohibition that focuses
on societal and individualized harms that true threats
create.
26
b. Petitioner’s effort (Br. 20-24) to derive such an
impediment from decisions in other contexts is similarly
misconceived. As discussed, the Court has not required
a particular subjective intent to restrict fighting words,
obscenity, and child pornography. And petitioner’s cursory reliance on United States v. Alvarez, 567 U.S. 709
(2012), and Illinois v. Telemarketing Associates, Inc.,
538 U.S. 600 (2003), is misplaced. Alvarez recognized
that where there is a “legally cognizable harm associated with a false statement,” it may be prohibited. 567
U.S. at 719 (plurality opinion). And in Telemarketing
Associates, the Court held only that a specific-intent
requirement was necessary to distinguish legitimate
fundraising—a protected First Amendment activity—
from fraudulent fundraising. 538 U.S. at 620-623. Neither decision implies that legislatures are powerless,
based on a defendant’s unreasonable subjective mindset, to protect the populace from threats of violence.
Nor can such an implication be drawn from cases
addressing incitement. This Court has sometimes described incitement in part by reference to whether particular words were “directed,” Brandenburg v. Ohio,
395 U.S. 444, 447 (1969) (per curiam), or “intended,” Hess
v. Indiana, 414 U.S. 105, 109 (1973) (per curiam), to incite imminent lawless action. But unlike true threats, incitement cannot be defined by measuring the reactions
of a reasonable person aware of the context; criminal
conduct is never a legally “reasonable” reaction to
speech. And speech that is harmful only when others
are likely to act upon it may enjoy more First Amendment protection than speech that itself directly causes
harm.
27
3. Petitioner’s chilling concerns are unfounded
Finally, petitioner lacks solid footing when he contends (Br. 30-40) that a specific intent to threaten is required to avoid “chilling” protected speech. Contrary
to his assertion (Br. 31), a jury properly instructed on
the reasonable-person definition of true threats should
not find a defendant guilty beyond a reasonable doubt
based on a legitimate “misunderstanding[]” or any other
circumstance in which it finds the threatening nature of
the defendant’s statements to be ambiguous.
In cases where the potentially innocuous meaning of
a defendant’s statement might not be readily apparent to
jurors—perhaps given their ages, their backgrounds,
their familiarity with a particular forum for expression,
or their understanding of a religious practice or art form,
see Pet. Br. 32-34, 37-39—a defendant is free to introduce evidence about the relevant context, including his
own testimony, testimony of others in his community, or
even expert testimony. And in all cases with a generalintent requirement, conviction requires proof beyond a
reasonable doubt that the defendant understood the
meaning of his words, was aware of all the relevant context, and intentionally conveyed his words. See, e.g., Ragansky v. United States, 253 F. 643, 645 (7th Cir. 1918).
Those requirements, in combination with “the requirement of proof beyond a reasonable doubt,” “address[]” the “fact that close cases can be envisioned.”
United States v. Williams, 553 U.S. 285, 305-306 (2008).
Appellate review then provides yet another layer of protection for defendants with First Amendment claims.
For other categories of unprotected speech such as
fighting words, obscenity, and child pornography, such
review has included “independent” evaluation of the
substantive constitutional viability of particular criminal
28
verdicts, Bose Corp. v. Consumers Union of United
States, Inc., 466 U.S. 485, 504-508 (1984), and a reviewing
court could apply a similar standard to true threats.
But, as in those contexts, it is not necessary to require proof beyond a reasonable doubt of a defendant’s
subjective intent or knowledge. The criminal-justice
system traditionally trusts juries and courts to set aside
their preconceptions and reach reasoned, disinterested
judgments. Such trust is no less warranted in this setting than in others.
C. If The Court Requires A Subjective Mindset In True
Threats Cases, It Should Adopt Recklessness
If, however, the Court concludes that the First
Amendment requires proof of a defendant’s subjective
mens rea for communications that a reasonable person
would understand as threats, it should adopt a standard
of recklessness and remand for application of that
standard here. As illustrated by the history of applying
recklessness in the public-defamation context, a recklessness standard would provide any necessary reassurance of “enough ‘breathing space’ for protected
speech,” Elonis, 575 U.S. at 748 (Alito, J., concurring in
part and dissenting in part) (citation omitted), without
sacrificing too many of the deterrent, retributive, and
incapacitating benefits of a criminal prohibition on all
communications that a reasonable person would understand as a threat.
1. A reckless defendant subjectively subordinates
the likelihood of harm to others to his own ends. See
Voisine v. United States, 579 U.S. 686, 694 (2016).
When he does so, he is not entitled to claim innocence in
the eyes of the law. Instead, as a matter of both theory
and practice, a defendant who “consciously disregards
a substantial and unjustifiable risk” of a harmful result
29
has a culpable state of mind, even if he is not “practically
certain” that the result will occur. Model Penal Code
§ 2.02(2)(b)(ii) and (c) (1985).
This Court has accordingly “described reckless conduct as morally culpable” in “a wide variety of contexts,” including in the context of speech regulations.
Elonis, 575 U.S. at 745 (Alito, J., concurring in part and
dissenting in part) (citing Farmer v. Brennan, 511 U.S.
825, 835-836 (1994); Tison v. Arizona, 481 U.S. 137, 157
(1987); Garrison v. Louisiana, 379 U.S. 64, 75 (1964);
and New York Times Co. v. Sullivan, 376 U.S. 254, 279280 (1964)); see Borden v. United States, 141 S. Ct. 1817,
1844 (2021) (Kavanaugh, J., dissenting) (“Reckless conduct is not benign.”). And a defendant who “necessarily
grasps that he is not engaged in innocent conduct,” “is
not merely careless,” and “is aware that others could
regard his statements as a threat, but * * * delivers
them anyway,” is undeserving of constitutional protection. Elonis, 575 U.S. at 746 (Alito, J., concurring in
part and dissenting in part).
2. The mens rea framework that this Court has imposed in certain defamation cases provides a workable
model for a recklessness-based approach to true threats.
For potentially defamatory speech directed at a public
official or figure or involving a matter of public concern,
the Court has allowed criminal or civil liability on a
showing of “ ‘actual malice,’ ” which is satisfied when a
statement was made “with knowledge that it was false
or with reckless disregard of whether it was false or
not.” Gertz, 418 U.S. at 334 (quoting New York Times,
376 U.S. at 280) (emphasis added); see Garrison, 379
30
U.S. at 74.9 A showing of specific intent is not required.
See Masson v. New Yorker Magazine., Inc., 501 U.S.
496, 510 (1991) (“Actual malice under the New York
Times standard should not be confused with the concept
of malice as an evil intent.”).
There is no reason to believe that threatening speech
requires more “breathing space,” New York Times Co.,
376 U.S. at 272 (citation omitted), than defamatory
speech. Threats of violence that a reasonable person
would consider genuinely threatening are more harmful
than defamatory statements. Defamation damages reputation; true threats place the recipient in fear for her
safety or even her life, and bring with them numerous
additional harms. The government surely has a strong
interest in eliminating such fear and disruption, particularly when the government is called upon to respond
by protecting the target and investigating the speaker.
Indeed, the governmental interests in deterring and
punishing threats are so strong that recklessness would
be the appropriate standard even if true threats were
not already categorized as unprotected speech. A strictscrutiny analysis would similarly yield a recklessness
standard as the line “narrowly drawn to achieve” the
State’s overwhelming interest in protecting its citizens
from the fear, disruption, and other harms that true
threats cause. Boos v. Barry, 485 U.S. 312, 321 (1988)
(citation omitted). It is hardly too much to ask that,
at minimum, speakers refrain from sending communications that they know have a “substantial and
Defamation that targets a private person on matters of private
concern can be punished without proof of recklessness, as long as
the State “do[es] not impose liability without fault.” Gertz, 418 U.S.
at 347; see Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767,
773-775 (1986).
9
31
unjustifiable risk” of being interpreted as threats.
Model Penal Code § 2.02(2)(c) (1985).
Under petitioner’s approach, however, no matter how
clear it is that a communication would be taken as expressing a serious intention to inflict violence on others,
a defendant would be constitutionally entitled to avoid
conviction unless the prosecution has convincing proof
of the defendant’s subjective belief that the communication would be understood as threatening. But a defendant who is familiar with the meaning of the words spoken and their context can constitutionally be held accountable for the immediate and serious harms that his
true threats inflict. The First Amendment’s protection
of free speech—which has historically coexisted with a
categorical denial of protection to true threats—does
not demand otherwise.
CONCLUSION
The judgment of the Colorado Court of Appeals
should be affirmed.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
KENNETH A. POLITE, JR.
Assistant Attorney General
ERIC J. FEIGIN
Deputy Solicitor General
NICOLE FRAZER REAVES
Assistant to the Solicitor
General
PAUL T. CRANE
Attorney
MARCH 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.