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Supreme Court establishes higher standard for ‘true threat’ prosecutions

Steps of the US Supreme Court building

Jack Gruber / USA TODAY

People on the steps on the Supreme Court building after handing down opinions in Mallory v. Norfolk Southern, Counterman v. Colorado, and Moore v. Harper on Tuesday, June 27, 2023. 

Thanks to the U.S. Supreme Court’s decision in Counterman v. Colorado this week, poorly worded jokes or exaggerations should no longer land someone behind bars.

In Counterman, the Court held the government must prove a speaker acted with recklessness in order to convict them for allegedly threatening speech. In other words, to be culpable for threats, a speaker must affirmatively choose to disregard risks that his speech may be taken as a threat — or, in the Court’s terms, the speaker must be “aware that others could regard his statements as threatening violence and deliver[] them anyway.”  The Court made clear that recklessness, in this context, is a subjective standard, judged based on the speaker’s awareness, not the listener’s perception. 

This means that the jokes and off-hand comments described in FIRE’s friend-of-the-court brief should receive First Amendment protection in the future. For example, FIRE’s amicus brief tells the story of Meredith Miller, a University of Utah student who joked on social media that she would detonate the campus nuclear reactor if the Utes lost their upcoming football game — the kind of bluster and hyperbole sports fans utter online every day. 

Despite the obviousness of the joke, university police arrested and charged Meredith for making “terroristic threats.” She had to post $5,000 bail to sleep in her own bed that night. Although the charge was dropped after FIRE wrote the district attorney, her university refused to back down, bringing Meredith up on disciplinary charges and trying to suspend her from school for two years. After hiring a lawyer to defend her, she succeeded in defeating the disciplinary charge.

Gavel on court desk

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


FIRE submitted an amicus brief to the Supreme Court arguing that the label of “true threats,” which are outside the First Amendment’s protection, should only apply when there is evidence of the speaker’s specific intent to threaten.

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None of this should have happened, and thanks to the Counterman decision, it almost certainly won’t in the future. As the Supreme Court clarified, hyperbole — which should include jokes and other statements that do not convey a “real possibility” that violence will follow — cannot be criminalized as a “true threat.” 

This is good news for free speech. Before the Court’s ruling, many jurisdictions across the country used an objective standard to analyze criminal threats. They allowed punishment for speech that a reasonable person familiar with the circumstances would deem threatening without regard for the speaker’s intent. 

In FIRE’s experience, under an objective standard, speakers have been punished far too easily, not only for jokes and unserious, off-hand comments, but also for core political expression. And even in jurisdictions that had a subjective test, as in Meredith Miller’s case, government actors outside the prosecutor’s office argued that a speaker’s intent was irrelevant. 

This week, the Court explicitly rejected the objective “reasonable person” standard in favor of a more speech-protective subjective test. The open question of whether the speaker’s intent matters in a “true threat” case should now finally be closed. 

While the Court chose the right side of the objective vs. subjective divide, FIRE and other civil liberties organizations had asked it to raise the bar higher than recklessness. Specifically, free speech advocates sought a more speech-protective mental state requirement that a speaker knowingly or purposefully placed another in fear of physical violence. Requiring that a speaker subjectively knew his statement would be taken as a threat, or spoke with the purpose of placing someone in fear of physical violence, would have further protected speakers. 

FIRE is heartened by the Court’s acknowledgement that hyperbole will not constitute a “true threat,” thus setting a higher bar for prosecutions across the country.

Consistent with FIRE’s brief, Justice Sotomayor, in a concurring opinion joined by Justice Gorsuch, wrote that “true threats” should encompass only those statements the speaker intends as threatening because “[a] jury’s determination of when angry hyperbole crosses the line will depend on amorphous norms around language, which will vary greatly from one discursive community to another.” In other words, one person’s “threat” may be another’s lyric. As the concurring opinion wisely notes, simple “recklessness” is “a troubling standard for juries in a polarized nation to apply in cases involving heated political speech.”   

While the majority did not adopt a stricter standard, FIRE is heartened by the Court’s acknowledgement that hyperbole will not constitute a “true threat,” thus setting a higher bar for prosecutions across the country. After this ruling, fewer prosecutors will be able to criminalize speech — and FIRE aims to keep it that way.

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