The U.S. Supreme Court on Wednesday weighed when statements constitute 鈥渢rue threats鈥� that are not protected by the First Amendment, and the justices had potentially menacing speech involving schools on their minds.
鈥淟et鈥檚 imagine this example,鈥� Justice Amy Coney Barrett said during arguments in . 鈥淎 teenager in a high school says something like, you know, 鈥業鈥檓 going to shoot this place down,鈥� and it鈥檚 devoid of all context.鈥�
The school, taking the threat seriously, Barrett said, 鈥渨ants the kid to be barred from the grounds or wants him to be suspended for a few days so they can assess the threat. 鈥� Could the school do that just based on that one statement?鈥�
John P. Elwood, a Washington lawyer representing a man sentenced to four-and-a-half years in prison for sending disturbing Facebook messages that the sender contends were not meant to be threatening, said he believed a school could discipline a student in that situation.
鈥淪chools have extra leeway, and schools are a whole ball of wax鈥� different from law enforcement treatment of such speech, Elwood said.
Left unsaid in that response is that law enforcement often quickly gets involved in school threats, and students frequently face criminal prosecution in addition to school discipline. School administrators and the legal community have been seeking better guidance on when speech-based threats may be punished either under school discipline or criminal or juvenile courts. The outcome of the Colorado case may provide some guidance on those questions.
Justice Brett M. Kavanaugh asked a U.S. Department of Justice lawyer whether there were any statistics or studies about school shootings or other incidents of violence 鈥渢hat perhaps could have been prevented if threats had been taken more seriously beforehand?鈥�
Eric J. Feigin, the deputy U.S. solicitor general arguing in support of Colorado鈥檚 prosecution of the Facebook threat-maker, said he didn鈥檛 have any numbers to offer, but the question reflected the experience 鈥渢hat there is frequently after one of these horrific incidents some question of 鈥� 鈥榶ou know, why didn鈥檛 you intervene, why didn鈥檛 you respond earlier?鈥欌��
鈥淚t is very important that the [government] have some ability to intervene at an earlier stage,鈥� Feigin said. 鈥淎nd legislatures shouldn鈥檛 be precluded from making the judgment that those kinds of harms are more important, particularly in the case of reckless defendants who decide that they will inspire fear in others to further their own selfish ends.鈥�
The importance of the 鈥渞easonable person鈥�
The case before the justices does not involve a school threat but postings on Facebook by Billy Raymond Counterman, who became enthralled with a singer-songwriter identified in court papers as C.W. Counterman sent her hundreds of messages and sometimes feigned friendship or intimacy that simply did not exist, and at other times sent messages that she perceived as menacing.
Counterman was charged and convicted under a state law against stalking. Counterman鈥檚 lawyers say he suffers from mental illness and never intended any threats. He was barred from submitting any evidence that he believed C.W. was corresponding with him. The prosecution and a trial court applied an objective standard requiring the jury to convict if it found that Counterman鈥檚 messages 鈥渨ould cause a reasonable person to suffer serious emotional distress.鈥�
The question before the Supreme Court is whether it is enough to show only that an objective 鈥渞easonable person鈥� would regard the statement in question as a threat of violence, to which Colorado contends, or whether the government must show that the speaker subjectively knew or intended the threatening nature of the statement, as Counterman鈥檚 lawyer argued.
鈥淐riminalizing misunderstanding is especially dangerous in an age when so much communication occurs on social media, which brings together strangers in an environment that removes much of the context that gives words meaning,鈥� Elwood told the justices. 鈥淎nd it chills expression by imposing prison time on speakers who do not tailor their views to suit their audience.鈥�
Colorado Attorney General Philip J. Weiser, arguing to uphold the conviction, said that an 鈥渙bjective, context-driven inquiry means that this test won鈥檛 criminalize a joke taken the wrong way, political advocacy, or hyperbole. It thus protects statements that contribute to the marketplace of ideas.鈥�
In , Weiser noted that threats on the 20th anniversary of the 1999 mass shooting at Columbine High School in Littleton, Colo., led to hundreds of school closures across Colorado.
鈥淭he First Amendment interests of those who are threatened, not just the asserted First Amendment interests of those who make threats, are at stake here,鈥� Weiser says in the brief.
Concerns about 鈥渆ggshell鈥� sensibilities
The court wrestled with these issues about eight years ago when it considered the case of a Pennsylvania man who made threats on Facebook that included rap lyric-style musings about shooting up an elementary school.
The justices ruled 8-1 in in 2015 to toss the federal conviction of Anthony Elonis, but the majority stopped short of making any broad First Amendment rulings about threats on the internet.
Four justices鈥� seats have turned over since that decision. The overall tone of Wednesday鈥檚 arguments showed some skepticism toward Colorado鈥檚 case.
The arguments showed some hints that changes outside the court may be affecting how the justices view the issue. There was discussion about whether the 鈥渞easonable observer鈥� of the objective standard might be too open to perceiving speech as threatening in the conflict-filled society of 2023.
鈥淲ho is the reasonable person?鈥� Barrett asked, wondering whether if it were speech on a college campus, 鈥渋s it the reasonable college student?鈥�
鈥淟et鈥檚 imagine a professor who wants people to understand just how vicious it was to be in a Jim Crow South and puts up behind them on a screen a picture of a burning cross and reads aloud some threats of lynching that were made at the time,鈥� Barrett continued. 鈥淧urely educational purpose in the teacher鈥檚 mind, but students feel physically threatened, they fear for their safety because they don鈥檛 understand it.鈥�
She went on to suggest that a Black student sitting in that classroom might perceive the lesson as more threatening than a white peer.
鈥淲e might have differences about who we think are the eggshell audience or not,鈥� Barrett said, in an apparent reference to people with overly delicate sensibilities.
Justice Clarence Thomas addressed the same concern about the objective 鈥渞easonable person.鈥�
鈥淲e鈥檙e more hypersensitive about different things now, and people could feel threatened in different ways,鈥� he said.
And Justice Neil M. Gorsuch referred to professors who issue 鈥渢rigger warnings鈥� to their students about 鈥渄ifficult鈥� educational content.
鈥淲e live in a world in which people are sensitive, and maybe increasingly sensitive,鈥� he said.鈥淎ren鈥檛 a lot of things harmful that we talk about鈥攁nd have to talk about鈥攄ifficult, offensive to reasonable people? Some of our history could count as that. Some of the court鈥檚 cases might even count as that.鈥�
A decision in the case is expected by late June.
