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FIRE asks Supreme Court to carefully define and limit First Amendment exception for ‘true threats’

Gavel on court desk

Alex Staroseltsev /

Sports fans make hyperbolic statements about their teams every day. But when University of Utah student Meredith Miller joked on social media that she would detonate the campus nuclear reactor if the Utes lost their upcoming football game, she had no idea her post could put her behind bars.

Unfortunately for Meredith, the University of Utah and its police force took her joke literally — arresting, charging, and jailing her for making “terroristic threats,” and forcing her to post a $5,000 bail to be released. The university also pursued disciplinary action against Miller that could have resulted in her suspension from school for two years. 

Thankfully, the Salt Lake County district attorney dropped the criminal charge after hearing from FIRE. And the university eventually found Miller not responsible for making a threat, although not until after she hired a lawyer to represent her at a disciplinary hearing. 

As FIRE’s experience in her case and others attests, punishing speech — including jokes and core political speech — with which the speaker had no intention of making a “true threat” is far too common

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That’s why FIRE, on March 1, submitted an amicus curiae brief to the Supreme Court of the United States in the case of Counterman v. Colorado. The brief argues that the “true threats” exception to the First Amendment should only apply when there is evidence of the speaker’s specific intent to threaten. The alternative — a general-intent standard — holds speakers accountable for statements made with no intention of causing harm, but that a reasonable person would deem threatening. 

The petitioner in the Counterman case, Billy Raymond Counterman, who has been diagnosed with a mental illness, believed he was conversing with a musician via Facebook messages, though the musician never responded. Ultimately, the musician canceled some shows and obtained a restraining order, and law enforcement arrested Counterman based on his messages, though he did not contact the musician while the restraining order was in effect. Counterman disclaimed any actual intent to make a threat, but the jury was instructed that his actual mental state was irrelevant and concluded that Counterman’s messages were threatening based on a general-intent standard.

But Supreme Court precedent has thus far agreed that a speaker’s intent is a vital element for determining a true threat. 

The “true threats” exception was first discussed in Watts v. United States. There, an 18-year-old Vietnam War draftee stated in front of a crowd of anti-war protestors: “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” A jury convicted the speaker for threatening the life of the president, but the Supreme Court reversed the conviction because the statement was nothing more than “political hyperbole.” The Court noted, quoting New York Times Company v. Sullivan, that statutes criminalizing speech must be judged: 

against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

In Virginia v. Black, the Court upheld the essential holding of Watts that “true threats” require an intent to cause fear in another — narrowly limiting the exception to those who “mean[] to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” 

Most federal circuit courts have nonetheless required only that a reasonable person, familiar with the circumstances, would find the statement threatening — the general-intent standard. But criminalizing the mere act of communication, regardless of the speaker’s intent to cause fear, is inconsistent with Watts and Black. It also fails to safeguard political hyperbole, attempts at humor, religious exhortations, and caustic commentary that are protected speech at the core of American politics and culture. 

FIRE asked the Supreme Court to definitively rule that a “true threat” is only that expression which is communicated with the specific intent to cause fear of physical violence in another.

Requiring evidence that the speaker intended to threaten protects our national commitment to uninhibited debate and free expression. By contrast, the general-intent standard chills speech. Under a general-intent standard, speakers will have no choice but to limit their charged and vehement political expression due to the potential for prosecution — and conviction — because of the reaction of listeners. In the words of Justice Thurgood Marshall, “we should be particularly wary of adopting such a standard for . . . pure speech,” as doing so “would have substantial costs in discouraging the ‘uninhibited, robust, and wide-open’ debate that the First Amendment is intended to protect.” 

Protecting wide-open debate does not come at the expense of safety. Most “true threats” cases are not close calls: Threatening behavior is typically obvious. Even when not obvious from the words, a speaker’s specific intent to threaten can be inferred based on a combination of the speaker’s words and the surrounding context. As our brief argues:

[M]ost criminals convicted of making true threats cannot outwit police, prosecutors, and juries. Factfinders can readily infer a defendant’s specific intent to threaten from the communications and surrounding circumstances when given the opportunity. They only need be properly instructed to find a specific intent in the first place.

While police departments and public officials should take every true threat seriously, they should be forced to identify some evidence that the speaker intended to cause fear before subjecting them to criminal consequences for their speech. Only then will there be a proper balance between protecting people from fear and ensuring open debate.  

To protect the breathing space necessary for free debate, and to prevent the unnecessary silencing and punishing of individuals speaking their minds across the nation, FIRE asked the Supreme Court to definitively rule that a “true threat” is only that expression which is communicated with the specific intent to cause fear of physical violence in another.

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