The Supreme Court’s Blind Side on Threatening Speech

The Court’s decision this week providing extra constitutional protection for true threats is out of touch with the stark realities of modern American life

There are blockbuster Supreme Court decisions coming down on a daily basis, with more to come, but the one that caught my attention this week was the Court’s 7-2 decision (Barrett and Thomas, dissenting) that made it more difficult to prosecute individuals for threatening violence. 

In its ruling, the Court reversed a criminal conviction of a Colorado man for harassing a woman via a series of Facebook posts that the jury found “would cause a reasonable person to suffer serious mental distress.” This standard was easily met as the harasser sent the woman hundreds of messages, circumvented her efforts to block his account, suggested that he was surveilling her, and clearly threatened physical violence (“You are not being good for social relations. Die.”). 

Yet, the Court held that the First Amendment requires a jury finding, not present in this case, that the conduct was not only objectively threatening, but that the perpetrator “consciously disregard[ed] a substantial risk that the conduct will cause harm to another.”

The Court added this requirement not because the harassers’ words were protected by the First Amendment. Threats, such as these, fall outside of constitutional protection.  But rather, the Court was concerned that laws imposing criminal punishment on threats without any requirement that the perpetrator was aware he was causing harm would create a “chilling effect” on speech that might cause individuals to “swallow words that are in fact not true threats.” In essence, the Court is saying that the power of the state to punish people who are threatening violence against others must be restrained in order to ensure that individuals do not “self-censor” statements that others might construe as violent threats but are really protected speech.

While of course one of the Court’s core responsibilities is protecting our system of robust debate and freedom to speak one’s mind without fear of retribution by the state, the concern that motivates the Court’s intervention in this case seems very out of touch with the realities of modern life in America.

Unfortunately, there is a great deal of truly threatening behavior both on-line and in public life. We have seen increasing anger and threatened violence at school board and town council meetings. Even after the pandemic eased, flight crews are facing ten times the level of unruly passenger behavior than in prior decades. Just this week, a TV weatherman in Iowa announced his retirement because his suggestions that severe weather was linked to climate change were leading angry viewers to flood his inbox with harassing emails and even a death threat. Apparently, this is happening to meteorologists, weather service employees, and climate scientists all over the world. Threats have real and direct consequences – causing people to alter their lifestyles (as the victim did in this case), fear for the safety of their families, and become depressed. In this context, it seems odd for the Court to be making it harder for innocent victims of harassment to seek protection from law enforcement based only on the speculation that some free expression might be “chilled.”

It is especially ironic for the Justices to be taking this posture in light of the concerns they expressed last year in the lead-up to and following the reversal of Roe v. Wade about large numbers of people protesting outside of their homes. The Justices felt threatened (justifiably, in my view) even without any evidence that the protestors intended any harm to the Justices and their families (although there was an arrest during this period of an individual for plotting to assassinate Justice Kavanaugh). Indeed, the federal law that outlaws these protests contains no requirement that the government show that the protesters were reckless with respect to the harm they were causing to the Justices, yet the Court imposed just such a requirement with respect to threats posed to everyday Americans.  

I am also struck by the obliviousness of the Justices to the fact that – due in large part to their own Second Amendment decisions – huge swaths of the population are lawfully heavily armed. What this means for those of us without federal security protection like the Justices and their families is that the potential for mere verbal threats to turn into actual violence is ever present. Under these circumstances, we should be empowering law enforcement agencies to act against genuine threats of violence, not erecting barriers that make them reluctant to move forward with valid prosecutions. Given that in this case the harasser expressed a desire for the victim to “die” (presumably since she was ignoring his pleas for affection), she deserved law enforcement intervention without having to wait for them to compile evidence regarding the harasser’s state of mind. 

I am also a bit stupefied trying to figure out what valuable speech the Justices think they are protecting by making it harder to prosecute threats. Strangely, Justice Kagan’s opinion analogizes this situation to the heightened intent standard that was applied to defamation cases against the media in the landmark New York Times v. Sullivan case.  In that case, the Court held that the media could not be held liable for the damage a false statement caused to a public figure without proof that the media acted with “reckless disregard” for whether the statement was true or not. This barrier to a valid defamation action was put in place to protect the important democratic value of empowering the media to hold high ranking government officials accountable for their actions. But what vitally important speech is being protected by making prosecution of threats of violence more difficult?  One needs to spend no more than a couple minutes on social media to understand that we need not worry that people are self-censoring themselves from making nasty offensive statements about others on the internet. Having been on the receiving end of vile and threatening statements on many occasions, I think society would be better off if we had a bit more self-censorship in this regard, not less. Indeed, Justice Barrett gets the better of the argument on this point, stating that “Sullivan’s rationale does not justify a heightened [state of mind requirement] for true threats…[b]ecause true threats are not typically proximate to debate on matters of public concern.”

I accept that there are worthy concerns about self-censorship that have arisen due to cancel culture, and it is possible that this is an unstated motivation behind the opinion. Cancel culture warriors have brought this on by their claims that virtually any statement or use of rhetoric with which they do not approve is causing them “harm” or even “violence.” But the odds of getting a prosecutor to bring a threats case based on this distorted conception of harm, and then getting a jury to decide unanimously to send someone to jail because they have offended someone’s sensibilities, is so remote that I don’t think we should be basing our constitutional law on it. 

I am all for unrestricted political debate. I want people to feel free to express unpopular ideas. I want the media to scrutinize public figures without fear of a bankrupting defamation lawsuit. And I don’t want my students self-censoring their ideas in my classroom.

But these are very different circumstances than actual threats of violence. It is hard to see why the Supreme Court does not understand this.