The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Goldilocks and the Four Non-Originalists
Counterman v. Colorado was a throwback to a different era.
In Bruen, Justice Thomas observed that the Second Amendment, like the First Amendment, should be interpreted with an originalist standard. Thomas wrote that with the freedom of speech, "to carry that burden, the government must generally point to historical evidence about the reach of the First Amendment's protections." Really? That was news to me. Throughout the entire twentieth century, the Supreme Court erected an elaborate and intricate free speech jurisprudence. There are tiers of scrutiny, balancing tests, categorical tests, and more. But very little of the free speech caselaw could be called originalist. Sure, in some cases, the Court talks about history. But this jurisprudence was manufactured from the ground up.
Nowadays, the Court seems to eschew this sort of free-floating judging. Even when the Court develops new doctrine, it tries to ground those principles in history. But Counterman v. Colorado felt like a throwback to a different era. This case considered what the proper mens rea was in a true-threats case. Justice Kagan wrote the majority opinion, which was joined by Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson. Should it be purposeful, knowing, or recklessness? The majority chose a recklessness standard. Why recklessness? Justice Kagan explained:
Among those standards, recklessness offers the right path forward.
The Court struck a balance between punishing threatening behavior and avoiding the chilling of protected speech. There is no originalist case for this standard or that standard. Rather, the Court made an overt value judgment.
Justice Barrett wrote a dissent, joined by Justice Thomas. Justice Barrett charged that the majority was engaging in an inherently legislative task:
The optimal balance strikes me as a question best left to the legislature, which could calibrate the mens rea to the circumstance—for example, higher for the criminal context and lower for the civil. The reality is that recklessness is not grounded in law, but in a Goldilocks judgment: Recklessness is not too much, not too little, but instead "just right."'
In response, Justice Kagan owned her open-ended balancing:
The dissent accuses the Court of making a "Goldilocks judgment" in favoring a recklessness standard. Post, at 13 (opinion of BARRETT, J.). But in law, as in life, there are worse things than being "just right."
How would Justices Barrett and Thomas have resolved this issue? The starting point is not the Justices' own sense of propriety, but history:
So is the silence in the historical record. Since 1791, true threats have been excluded from the "speech" protected by the First Amendment. R. A.V., 505 U. S., at 382–383, 388. If Counterman could show that a subjective requirement has been inherent in the definition of "true threat" since the founding, he would have a compelling case. But Counterman cannot make that showing. For starters, he produces no evidence directly addressing the meaning of the First Amendment—nothing from state ratifying conventions, political commentary, or even early debates about efforts to regulate threats in ways that might threaten speech. That is not surprising at the federal level, because the Federal Government did not prohibit threats until the early 20th century. Elonis, 575 U. S., at 760 (THOMAS, J., dissenting). Some States, however, both regulated threats and guaranteed the right to free speech in their own constitutions. Id., at 760–761. Yet even at the state level, there was apparently no discussion about the implications of these statutes for the constitutional right.
What should the Court do in the absence of historical support for this rule? The Justices should decline to expand the protections of the"true-threat" doctrine:
At the end of the day, then, the best historical case for Counterman does not add up to much. He is plainly not asking the Court to enforce a historically sanctioned rule, but rather to fashion a new one.
Justice Thomas wrote a separate dissent. He analogized the made-up true threats doctrine to the "actual malice" standard from New York Times v. Sullivan:
Like the majority's decision today, "New York Times and the Court's decisions extending it were policy-driven decisions masquerading as constitutional law." McKee v. Cosby, 586 U. S. ___, ___ (2019) (THOMAS, J., concurring
Moreover, Justice Thomas faults the majority for extending further this "flawed" jurisprudence.
Many Members of this Court havequestioned the soundness of New York Times and its numerous extensions. See, e.g., Berisha, 594 U. S., at ___–___ (GORSUCH, J., dissenting from denial of certiorari) (slip op., at 5–8); Coughlin v. Westinghouse Broadcasting & Cable, Inc., 476 U. S. 1187 (1986) (Burger, C. J., joined byRehnquist, J., dissenting from denial of certiorari); Gertz, 418 U. S., at 370 (White, J., dissenting); Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 62 (1971) (Harlan, J., dissenting); id., at 78 (Marshall, J., dissenting); Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring); see also E. Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Soc. Inquiry 197, 207 (1993); J. Lewis & B. Ottley, New York Times v. Sullivan at 50, 64 DePaul L. Rev. 1, 35–36 (2014) (collecting statements from Justice Scalia); cf. Tah v. Global Witness Publishing, Inc., 991 F. 3d 231, 251–256 (CADC 2021) (Silberman, J., dissenting in part) (questioning the doctrine). It is thus unfortunate that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court's jurisprudence.
The Court should not extend doctrine that itself has no grounding in the Constitution's original meaning. Justices Barrett and Thomas are exactly right.
