In an era of heightened political polarization, threats of violence have become increasingly prevalent in online discourse.[1] With the rise of social media and increasing connectivity through the internet, there has been a surge in the number and scope of threats against private individuals and against public officials, judges, and presidential candidates.[2] Society’s tacit acceptance of threats and the standard for considering what a threat may entail has evolved: in the 1940’s, calling someone a ‘fascist’ could have been a fighting word,[3] whereas today, the word ‘fascist’ is commonly used in political discourse.[4] Indeed, the “rapid changes in the dynamics of communication and information transmission,” especially in communicating online, have changed what “society accepts as proper behavior.”[5]

The ever-expanding types of forums for making threatening speech have created a large pool of victims. Over time, an increasing number of people in the United States have experienced “hate or harassment” online, with many experiencing severe harassment.[6] The victims of these threats suffer fear and stress, forcing some to adopt protective measures that reduce their “ability to live and travel freely.”[7] To public officials and law enforcement officers, threats can impede their ability to conduct their official duties and deter others from engaging in public service.[8] Consequently, law enforcement officials have devoted significant resources to detect and mitigate serious and dangerous threats.[9]

As such, prosecutors face questions whether these threats cross “the line from constitutionally protected speech” under the First Amendment “to violations of federal law.”[10] While the First Amendment states that “Congress shall make no law . . . abridging the freedom of speech,”[11] the Supreme Court has consistently held that the freedom of speech is not absolute.[12] When speech is exempted from First Amendment protection, it is because that speech plays “no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [that speech] is clearly outweighed by the social interest in order and morality.”[13] The government can punish words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace,”[14] which includes what the Court has called “true threats.”[15] The Court distinguishes between a true threat from what they term “jests” or “hyperbole,” defining true threats as “‘serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful violence.’”[16]

To hold a person criminally liable for a true threat, the Supreme Court held in Counterman v. Colorado that the individual making the true threat must have an “understanding” of the “statements’ threatening character” with a mens rea[17] of recklessness.[18] To meet the recklessness standard, the individual must “consciously disregard a substantial risk that the conduct will cause harm to another.”[19] While the Counterman majority explains the benefits of their remedy,[20] this Note argues that the Court strikes the wrong balance that sweeps in too much conduct and imposes a one-size-fits-all remedy to all speech under the true threats exception to the First Amendment.

To better balance First Amendment speech while also holding individuals criminally liable for making true threats, I argue that the recklessness standard that sweeps in all speech considered a “true threat” is too broad and unworkable. Instead, I posit that (1) repeated or sustained[21] speech categorized as true threats should be not be held to the recklessness standard announced in Counterman for criminal liability, as it should instead be held to an objective test, and (2) to impose criminal liability on isolated or discrete[22] speech categorized as a true threat, the mens rea of knowledge[23] is the correct path forward.

In Part I, I provide a brief background of true threats jurisprudence. In Part II, I discuss the relevant background of Counterman and how the Counterman court resolved lingering questions within the true threats exception. In Part III, I argue that the Counterman holding is too broad. To remedy this broad holding, I present the case for excluding repeated or sustained speech from Counterman’s suggested subjective standard. In Part IV, I evaluate speech that is isolated or discrete, concluding that the proper standard to hold an individual criminally liable for this type of speech should be raised to knowledge as a constitutional floor, not recklessness. Finally, I offer additional considerations that courts ought to look to in evaluating criminal liability of speech within the context of the evolving landscape of American discourse.

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[1] Joseph Palmer, When Does Online Speech Become a Federal Crime?, 77 Dept. of Just. Fed. L. & Prac. 77, 77 (2023).

[2] Id. at 77; see also United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011) (discussing online threats an individual made against then-Presidential candidate Barack Obama).

[3] See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (finding a statute did not violate the First Amendment that criminalized an individual calling someone else a “damned Fascist,” as it was a fighting word exempt from First Amendment protections).

[4] See, e.g., Rich Barlow, Are Trump Republicans Fascists?, BU Today (Feb. 11, 2022), https://www.bu.edu/articles/2022/are-trump-republicans-fascists/.

[5] Counterman v. Colorado, 600 U.S. 66, 87 (2023) (Sotomayor, J. concurring in part) (quoting Ontario v. Quon, 560 U.S. 746, 759 (2010)).

[6] See Ctr. for Tech. and Soc’y, Am. Defamation League, Online Hate and Harassment: The American Experience 2023 8 (2023) (discussing a survey in which fifty-two percent of American adults surveyed “reported experiencing hate or harassment online at some point in their lives” while thirty-seven percent reported experiencing “severe harassment,” including “physical threats, sustained harassment, stalking, sexual harassment, doxing, and swatting”).

[7] Palmer, supra note 1, at 77; see also Counterman, 600 U.S. at 109 n.1 (Barrett, J. dissenting) (“The statutory findings explain that stalking, harassment, and threats have ‘an immediate and long-lasting impact on quality of life as well as risks to security and safety of the victim and persons close to the victim.’” (quoting Colo. Rev. Stat. §§ 18–3–601(1)(f), 18–3–602(1) (2022))).

[8] Palmer, supra note 1, at 77.

[9] Id. at 77.

[10] Id. at 78.

[11] U.S. Const. amend. I.

[12] See, e.g., Gitlow v. New York, 268 U.S. 652, 666–67 (1925).

[13] See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (discussing fighting words).

[14] Id.

[15] See e.g. Counterman v. Colorado, 600 U.S. 66 (2023).

[16] Id. at 74 (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)).

[17] Mens rea, or “guilty mind,” refers to the mind state of a defendant required to impose criminal liability. Paul H. Robinson, Mens Rea, in Encyclopedia of Crime & Justice 995, 995 (2nd ed., 2002).

[18] Counterman v. Colorado, 600 U.S. 66, 73 (2023).

[19] Voisine v. United States, 579 U.S. 686, 691 (2016) (citing ALI, Model Penal Code § 2.02(2)(c) (1962)).

[20] Counterman, 600 U.S. at 82 (explaining that the majority’s standard “offers ‘enough “breathing space” for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats”).

[21] I define repeated or sustained as threatening speech or conduct that occurs more than once over a longer period of time, such as a pattern of behavior akin to stalking or harassment.

[22] I define isolated or discrete as threatening speech or conduct that occurs once that happens in a discrete time frame, akin to a threatening utterance or political protest.

[23] A mens rea of knowledge would entail that an individual is “aware” that a specific “result is practically certain to follow,” that is, that an individual knows “to a practical certainty that others will take his words as threats.” Counterman, 600 U.S. at 79.

 

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