The First Amendment does not, and never has, protected threats of violence, and this week the Supreme Court clarified the standard for criminalizing “true-threats,” resolving a circuit split in the process. In Counterman v. Colorado, the Court, in an opinion written by Justice Elena Kagan, held that although a person needs to intend for words to be threatening to rise to the level of criminality, a showing that a person was acting recklessly when they made the statement would satisfy the intent requirement, reported Lawfare.
What Is a “True-Threat”?
The Court began by defining a “true-threat” as a “‘serious expression’ conveying that a speaker means to ‘commit an act of unlawful violence.’” The Court reiterated, however, their distinction that a true-threat is different from “jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow.”
he Court decided between three different mens rea standards for the prosecution to be able to convict someone under a true-threats theory: (a) The defendant wanted his words to be perceived as a threat (purposeful); (b) he knew to a practical certainty that his words would be taken as a threat (knowledge); and (c) he consciously disregarded a substantial and unjustifiable risk that the conduct would cause harm to another (recklessness). Out of these three standards, recklessness prevailed as the path forward: “In the threats context, it means that a speaker is aware ‘that others could regard his statements as’ threatening violence and ‘delivers them anyway.’” The Court noted that reckless defendants have done more than make a bad mistake, but have consciously accepted a substantial risk of inflicting serious harm. Their formulation of the path forward took into consideration the “competing value” found in “protecting against the profound harms, to both individuals and society, that attend true threats of violence—as evidenced by this case” against chilling protected speech.
Therefore, the Court ruled that, to find that someone communicated a true-threat, a party must prove the defendant at least acted recklessly when he or she conveyed the threat to another.
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