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 resolved the question in Counterman v. Colorado (where our own John Elwood represented Counterman). Justice Kagan, joined by Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson, held that a showing of recklessness was necessary and sufficient:
[T]he First Amendment … requires proof that the defendant had some subjective understanding of the threatening nature of his statements …[,] but that a mental state of recklessness is sufficient. The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.
Note that this is recklessness in the sense of consciously disregarding a risk, not just gross negligence (which is sometimes colloquially labeled "recklessness"), which can be present even without any consciousness of the risk. The majority's opinion will likely apply to civil liability for threats as well as criminal liability, and also for civil restraining orders against threats (which are entered in a civil lawsuit but which can lead to criminal punishment if they are violated). As a general matter (to oversimplify slightly), the First Amendment rules are much the same in criminal and civil cases based on speech.
Justice Sotomayor concurred in part and concurred in the judgment. She concluded that recklessness was enough in cases of stalking, in the form of "a combination of threatening statements and repeated, unwanted, direct contact." (These were the charges against Counterman in this case). As to prosecutions based simply on individual threatening statements, she reasoned:
[I would leave] for another day the question of the specific mens rea required to prosecute true threats generally. If that question is reached, however, the answer is that true threats encompass a narrow band of intentional threats. Especially in a climate of intense polarization, it is dangerous to allow criminal prosecutions for heated words based solely on an amorphous recklessness standard.
By "intent," it appears that she means a showing of purpose or knowledge should suffice for liability, but not a showing of recklessness. Justice Gorsuch joined the parts of Justice Sotomayor's opinion related to stalking, to leaving the recklessness-or-something-more question for later, and to rejecting a mere negligence standard; he doesn't join her endorsement of requiring purpose or knowledge.
Justice Barrett, joined by Justice Thomas, would have opted for what is basically a negligence standard (again, oversimplifying slightly).
The opinions also say more about other free speech doctrines, in the process of offering analogies and distinctions; I hope to put up separate blog posts about those items in the next several days.
Disclosure: Profs. Evelyn Douek (Stanford) and Genevieve Lakier (Chicago) and I filed an amicus brief that urged the court to treat the case as being about stalking (here at least hundreds of unwanted direct messages to the victim) rather than being about threats generally. Our position was therefore similar to the one Justices Sotomayor and Gorsuch took on this question, and indeed the concurring opinion cites the brief.