Case law construing the First Amendment’s protection for free speech has long recognized that certain categories of speech are unprotected. These include obscenity, incitement, and fighting words. Whereas cases involving regulations of protected speech typically center on the strength of the grounds for government regulation and the availability of less restrictive means, disputes about unprotected speech generally concern the categories’ boundaries. That was certainly true of the recent Supreme Court oral argument in Counterman v. Colorado.
At issue in Counterman is the scope of the unprotected category of “true threats” of physical harm. Everyone agrees that government may forbid the making of a threat that genuinely conveys the impression that the speaker (or, as in the actual case, online writer) intends to harm the listener (or reader). And for good reason. Statements like “I will kill you” make no recognizable contribution to the so-called marketplace of ideas while doing substantial damage. Even if not carried out, a true threat can cause its victim serious anxiety which is itself harmful and may understandably lead the victim to drastically curtail their activities.
The question in Counterman is what the government must prove for a statement to qualify as an unprotected true threat. Statutes in some jurisdictions require that the government prove that the defendant subjectively intended or at least knew that it was highly likely that the addressee of the language used would deem it genuinely threatening. In Colorado and most other states, it suffices to show that given the whole context, a reasonable person would have understood the words as a true threat. Counterman argues that the First Amendment disallows Colorado’s approach and requires that the government must demonstrate that the defendant subjectively intended or knew that the victim would likely understand the message as a true threat. Colorado responds that the U.S. Constitution permits states to choose whether to require subjective intent or knowledge, on the one hand, or, on the other hand, to permit conviction based on an objective reasonable person standard.
In the interest of full disclosure, I should say that I joined an amicus brief of legal scholars supporting Colorado’s position that the First Amendment leaves to the political process the decision whether to adopt a subjective intent/knowledge requirement or to use an objective reasonable listener standard in true threats case. In my judgment, Colorado should win this case. Whether it will win remains uncertain.
Oral Argument Highlights
As in other recent constitutional cases, much of the oral argument in Counterman focused on history. Did English common law permit criminal punishment for making objectively threatening statements without a requirement that the government prove subjective intent or knowledge? Did the law in the colonies? What about the laws of the various states in 1868, the ratification date of the Fourteenth Amendment—which incorporates the right to free speech against state governments? Lawyers for each side pointed to different cases or interpreted the same cases differently. Neither the advocates nor any of the Justices connected the positive law at earlier times to the original meaning of the First Amendment, which most historians regard as having a very narrow scope in the eighteenth century, barring prior restraints but little else.
Policy arguments also seemed inconclusive. Colorado argued that if the criminal justice system cannot charge, try, and imprison people who make objectively threatening statements, police will end up waiting until threats of violence escalate to actual violence. As the brief my co-signers and I filed notes, studies show that the vast majority of domestic violence victims are stalked before they are physically attacked. Counterman’s attorney pushed back by citing the risk that people will self-censor out of fear that statements made with innocent intentions—perhaps only as a joke, even—will be deemed objectively threatening.
Which risk is worse? In my view, the objective reasonableness requirement sufficiently protects innocent statements, while the state’s interest in preventing actual violence is quite strong. How the Court weighs these and other interests might depend on which side it assigns the burden of proof. Counterman’s lawyer said the government bears the burden when it seeks to infringe speech. That’s generally true, but it begs the question at issue—which is whether, when judged by a permissible standard, Counterman’s language is protected speech in the first place. If it falls within the unprotected category of true threats, the government would not bear the burden of justifying infringing his speech.
In some ways, the oral argument reflected a longstanding debate about the vices and virtues of subjective versus objective tests in the law. Because it is nearly impossible to know the actual contents of another person’s mind, the law sometimes prefers objective tests. But objective tests can lead to difficult definitional questions, including how to define the view of a hypothetical reasonable person in a diverse society with a wide range of perspectives.
Three conservative Justices seemed especially worried about the perspective question in light of the perception by Justice Neil Gorsuch that people may be “increasingly sensitive.” He observed that Colorado Attorney General Philip Weiser (who was formerly a full-time law professor at the University of Colorado) “might have issued a trigger warning from time to time.” Justice Clarence Thomas likewise speculated that “someone could be triggered” by statements that were not intended to be threatening. Justice Amy Coney Barrett posed a hypothetical classroom example in which students feel threatened or unsafe in response to the instructor’s first-person narration of a lynching scenario. Although Weiser said the educational context would render such fears unreasonable, he did not seem to allay the conservative Justices’ own fears that the woke mob that Fox News tells them dominates college campuses might end up defining reasonableness down and thus ensnare innocent educators and jokesters.
Genuinely Unreasonable Fear
The conservative Justices’ concerns about the metaphorical triggering of hypothetical snowflaky youngsters were especially galling, coming, as they did, fast on the heels of two high-profile shootings by actually trigger-happy oldsters acting on the basis of completely unreasonable fears. In Kansas City, Missouri, 84-year-old Andrew Lester opened fire on teenager Ralph Yarl, who rang the former’s doorbell having innocently mistaken Lester’s home at Northeast 115th Street for the one at nearby Northeast 115th Terrace where he was meant to pick up his siblings. Lester unreasonably feared a break-in, presumably because Yarl is Black.
Just days later, 65-year-old Kevin Monahan fatally shot 20-year-old Kaylin Gillis because she and her friends mistakenly drove onto Monahan’s driveway in Hebron, New York. Race does not appear to have been a factor in the case, although it is hard to know, because Monahan pulled the trigger before he would have had a chance to see Gillis’s white skin as she sat in the passenger seat of a car that was already exiting his property.
Astoundingly, just the day before the oral argument in Counterman, it happened again. This time the shooter was a mere 25-year-old, Pedro Tello Rodriguez Jr. He shot 18-year-old Payton Washington in Elgin, Texas, after she mistook his car for her ride and tried to apologize for her innocent error. It’s not clear whether Monahan and/or Rodriguez acted out of fear, malice, or some other emotion. It is clear that they, like Lester, acted unreasonably—indeed outrageously.
Even so, it would miss the big picture to chalk up the murder of Gillis and the attempted murders of Yarl and Washington to three people acting very badly. Of course the shooters did act very badly, but the fact that in under one week three people in different parts of the country were shot for an innocent mistake says something about the gun culture in which we live. In a country with extremely permissive gun laws, people who own guns for self-defense will anticipate that anyone they encounter will be armed. Some number of them—sadly, a number much higher than three—will shoot first and not bother to ask questions.
Can anything be done? Much stricter gun control could help but thanks to the Supreme Court’s tendentious reading of the Second Amendment, that’s no longer possible, even in blue states. As for the country as a whole, our politics prevent even the sorts of modest gun control measures (such as expanded background checks) that the Court’s decisions would allow. Yet even then, the Court bears substantial responsibility because its own rulings shape our politics. By gutting the Voting Rights Act and greenlighting extreme political gerrymandering, the Court’s Republican-appointed majority has enabled minority rule by Republicans in Congress.
It remains unclear how the Justices will define the boundaries of the doctrinal category of true threats for First Amendment purposes. However the Court resolves that issue, the true threat to America is not coming from the likes of the Colorado law being challenged in Counterman. The true threat is coming from inside the Supreme Court building.