The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court has long recognized that "true threats" of illegal conduct are excluded from First Amendment protection. But what mental state does the government have to show to prove that something is a true threat?
- Is it enough to show that a reasonable person would have recognized it as threatening (a mental state generally labeled "negligence")?
- Does the government have to show that the speaker recognized it was quite likely to be perceived as threatening, and ignored that risk (generally called "recklessness")?
- Does the government have to show that the speaker knew it was nearly certain to be perceived as threatening (generally called "knowledge")?
- Does the government have to show that the speaker specifically had the aim of making people feel threatened (generally called "purpose")?
Oddly enough, the Court has never resolved this question, though such "mens rea" elements are key parts of many other First Amendment tests:
- recklessness or knowledge, for instance, is required for speech about public officials or public figures to be unprotected libel;
- negligence is required for speech about private figures to be unprotected libel;
- purpose is required for speech advocating imminent and likely conduct to be incitement;
- and so on.
(I oversimplify here slightly.) In 2015, people anticipated that the Court would consider the question in Elonis v. U.S., but the Court interpreted the federal threats statute in a way that made it unnecessary to consider the question.
Today, the Court agreed to consider the First Amendment issue, in Counterman v. Colorado (a petition filed by our own John Elwood). I expect the Court will hear the case later this Term, and will decide it by late June.