Law & Courts

Supreme Court Makes It Harder to Prosecute ‘True Threats’ That Could Be Aimed at Schools

By Mark Walsh — June 27, 2023 4 min read
Police officers stand guard outside of the U.S Supreme Court building on June 23, 2023, in Washington.
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In a decision with implications for threats directed at schools, the U.S. Supreme Court on Tuesday made it more difficult for states to prosecute “true threats” by requiring them to prove that a defendant had some subjective understanding of a statement’s threatening nature.

The court said a state could meet that test under a “recklessness” standard for the defendant’s state of mind.

“The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” Justice Elena Kagan wrote for a 7-2 majority in Counterman v. Colorado. The recklessness standard, she said, “offers enough breathing space for protected speech, without sacrificing too many of the benefits of enforcing laws against true threats.”

The case involved 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 Colorado state law against stalking. Counterman’s lawyers said he suffers from mental illness and never intended any threats. The prosecution and a trial court applied an objective standard requiring the jury to convict if it found that Counterman’s messages “would cause a reasonable person to suffer serious emotional distress.” The jury found him guilty.

The dissent cites discipline of school threats that might not meet new standard

At oral arguments in April, school-related threats were on the minds of several justices. Justice Amy Coney Barrett asked about a high school student who “says something like, you know, ‘I’m going to shoot this place down,’ and it’s devoid of all context.”

The school, taking the threat seriously, Barrett said at the argument, “wants the kid to be barred from the grounds or wants him to be suspended for a few days so they can assess the threat. … Could the school do that just based on that one statement?”

A lawyer representing Counterman suggested that school administrators have more leeway to discipline threats. But school-related threats, whether involving adults or students, speaking on or off campus, often quickly involve law enforcement and become criminal or juvenile justice cases.

Barrett wrote the main dissent, joined by Justice Clarence Thomas, in which she expressed concern that certain non-criminal enforcement actions against threats “face a higher constitutional hurdle” under the majority’s ruling.

“Employers and school administrators often discipline individuals who make true threats,” she observed.

Barrett cited several school cases in which courts upheld discipline of students for making true threats.

“Consider the student who was expelled after drafting two violent, misogynic (sic), and obscenity-laden rants expressing a desire to molest, rape, and murder his ex-girlfriend,” she said, referring to an Arkansas case in which a federal appeals court upheld a student’s expulsion in 2002.

“Or the one who was suspended after talking about taking a gun to school to ‘shoot everyone he hates,’” Barrett said, referring to a case in which two lower federal courts upheld the student’s suspension.

She said “the court’s new rule applies to all of these situations” and “that can make all the difference in some cases.”

A concurring justice expresses fears about internet speech being misunderstood

Kagan did not address school threats in her opinion, which was joined in full by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Brett M. Kavanaugh, and Ketanji Brown Jackson.

Justice Sonia Sotomayor, joined by Justice Neil M. Gorsuch, wrote an opinion concurring in Kagan’s majority in part and concurring in the judgment, saying she disagreed that a recklessness standard should be applied generally to true threats cases.

Sotomayor said that “the risk of overcriminalizing upsetting or frightening speech has only been increased by the internet.”

“Without sufficient protection for unintentionally threatening speech,” she wrote, “a high school student who is still learning norms around appropriate language could easily go to prison for sending another student violent music lyrics, or for unreflectingly using language he read in an online forum.”

Gabriel Z. Walters, a lawyer with the Foundation for Individual Rights and Expression, the group that presses First Amendment free speech rights on college campuses as well as in K-12 schools, said the decision “was generally good news for the First Amendment because it sets a high bar for true threats.”

He said that because of the Supreme Court’s 2021 decision in Mahanoy Area School District v. B.L., which held that schools did not have unfettered authority over students’ off-campus speech, discipline for school-related true threats will likely turn on whether a student was in school or off campus.

“For K-12 students who speak out of school, I think they can and should receive full protection,” said Walters, whose group filed a friend-of-the-court brief in support of Counterman. “The state would have to prove the student has a conscious disregard for the speech before it punished it as a true threat.”


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