EFF and Student Press Law Center Urge Supreme Court to Require Government to Show Subjective Intent in Threat Cases

EFF Intern Reema Moussa authored this post.

In our highly digitized society, online speech like posts, messages, and emails, can be taken out of context, repackaged in ways that distort or completely lose their meaning, and spread far beyond the intended recipients.

With this in mind, we are urging the Supreme Court to rule that any time the government seeks to prosecute someone for threatening violence against another person, it must show that the speaker subjectively intended to threaten before their speech can be considered a “true threat” not protected by the First Amendment.

In a brief filed with the Student Press Law Center, we argued that people should not face prison time because they misjudged how many people would see their speech or how an unintended recipient would react to the speech

The First Amendment requires that true threats are only those in which a speaker subjectively intends to threaten someone, so as to prevent protected speech such as humor, art, misunderstandings, satire, and misrepresentations, we told the court.

True threats are one of the very few categories of speech that has no constitutional protection. For this reason, it is important that true threats be narrowly defined. But to date, the Supreme Court has not decided the required state of mind a speaker must have. Some state and lower courts require that the speaker have a subjective intent to threaten the person when they speak. But other courts, and some state laws, believe the First Amendment only requires that an objectively reasonable person would perceive the statement to be a threat of violence.

The Supreme Court is considering a case called Counterman v. Colorado to resolve this question. The Court previously considered the question in 2014 in Elonis v United States, in which EFF also filed a friend of the court brief, but ultimately decided that case on other grounds.

In our Counterman brief, we argue that t

[…]
Content was cut in order to protect the source.Please visit the source for the rest of the article.