The U.S. Supreme Court made a major decision that will determine whether certain online comments will be classified as “threats” or free speech.
In a 7-2 opinion, the Court threw out the conviction of a man who allegedly made online threats to a stranger, saying that the online speech, however distasteful it might be, was protected by the First Amendment of the U.S. Constitution. The Court reasoned that “the First Amendment requires a subjective mens rea in true-threats cases,” but the Court did not take up the question of what the “specific mens rea required to prosecute true threats generally” or in other words, the state of mind required to convict someone of a crime.
Billy Counterman was originally convicted under a Colorado law penalizing speech that repeatedly caused another person to experience “serious emotional distress.” Counterman sent threatening messages to a local singer that he had never met, and while some of the messages were “prosaic” in nature, according to the Court, some “envisaged harm.” The messages included the statements “Good morning sweetheart” and “You’re not being good for human relations. Die.”
The Court added an interesting caveat to the law, requiring prosecutors to prove that the speaker was aware that the comments made were threatening in nature. This subjective standard will require prosecutors to prove that the speaker “disregarded a substantial risk that his communications would be viewed as threatening violence.”
Writing the majority opinion, Justice Elena Kagan said that while threats of violence are not protected by the First Amendment, a law intended to protect individuals from threats cannot have a chilling effect on “non-threatening speech.”
“Prohibitions on speech have the potential to chill, or deter, speech outside their boundaries,” Kagan wrote. “Like threats, incitement inheres in particular words used in particular contexts: Its harm can arise even when a clueless speaker fails to grasp his expression’s nature and consequence. But still, the First Amendment precludes punishment, whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”
Justice Sonia Sotomayor, in a concurring opinion joined in part by Justice Neil M. Gorsuch, agreed with the majority on the outcome of Counterman’s case, but expressed concern that the law failed to protect speech that is “unintentionally threatening.” Sotomayor gave an example of how the law could be used against someone who had no intention of actually threatening someone: a high school student might end up going to prison for sending violent music lyrics to another student.
“Without sufficient protection for unintentionally threatening speech, a high school student who is still learning norms around appropriate language could easily go to prison for sending another student violent music lyrics, or for unreflectingly using language he read in an online forum,” she wrote. “In the heat of the moment, someone may post an enraged comment under a news story about a controversial topic. Another person might reply equally heatedly. In a Nation that has never been timid about its opinions, political or otherwise, this is commonplace.”
With that logic in mind, it is not difficult to imagine that someone quoting the iconic “You’re killing me, Smalls!” line from the film, The Sandlot or sharing a Taylor Swift song about “bullet holes” could end up with criminal charges.
Justice Clarence Thomas joined Justice Amy Coney Barrett’s dissent in full, arguing that the ruling was too broad. Barrett specifically wrote in her dissent that the Court’s subjective standard ruling will make it more difficult for law enforcement to address actual threats based on the speaker’s “intent.”
“A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her,” Barrett wrote. “The Court’s decision thus sweeps much further than it lets on.”
MRC Free Speech America Vice President Dan Schneider said he hopes the decision will be a “wake-up call” to other liberal judges.
"The liberal judges on the Court just sent a message to the left in America: the First Amendment still counts,” he said. “It is astonishing that liberals across the country have forgotten that free speech is critical to democracy, but the Kagan decision might serve as a wake-up call to encourage her side of the aisle to rejoin the rest of America in supporting free speech rights.”
Conservatives are under attack. Contact your representatives and demand that Big Tech be held to account to mirror the First Amendment. If you have been censored, contact us at the Media Research Center contact form, and help us hold Big Tech accountable.
