Law & Courts

U.S. Supreme Court Has Schools in Mind as It Weighs What ‘True Threats’ Are

By Mark Walsh — April 19, 2023 6 min read
The Supreme Court on Wednesday afternoon, April 19, 2023, in Washington.
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The U.S. Supreme Court on Wednesday weighed when statements constitute “true threats” that are not protected by the First Amendment, and the justices had potentially menacing speech involving schools on their minds.

“Let’s imagine this example,” Justice Amy Coney Barrett said during arguments in Counterman v. Colorado. “A teenager in a high school 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, “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?”

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.

“Schools have extra leeway, and schools are a whole ball of wax” 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 “that perhaps could have been prevented if threats had been taken more seriously beforehand?”

Eric J. Feigin, the deputy U.S. solicitor general arguing in support of Colorado’s prosecution of the Facebook threat-maker, said he didn’t have any numbers to offer, but the question reflected the experience “that there is frequently after one of these horrific incidents some question of … ‘you know, why didn’t you intervene, why didn’t you respond earlier?’”

“It is very important that the [government] have some ability to intervene at an earlier stage,” Feigin said. “And legislatures shouldn’t 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.”

The importance of the “reasonable person”

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’s 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’s messages “would cause a reasonable person to suffer serious emotional distress.”

The question before the Supreme Court is whether it is enough to show only that an objective “reasonable person” 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’s lawyer argued.

“Criminalizing 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,” Elwood told the justices. “And it chills expression by imposing prison time on speakers who do not tailor their views to suit their audience.”

Colorado Attorney General Philip J. Weiser, arguing to uphold the conviction, said that an “objective, context-driven inquiry means that this test won’t criminalize a joke taken the wrong way, political advocacy, or hyperbole. It thus protects statements that contribute to the marketplace of ideas.”

In Colorado’s merits brief, 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.

“The First Amendment interests of those who are threatened, not just the asserted First Amendment interests of those who make threats, are at stake here,” Weiser says in the brief.

Concerns about “eggshell” 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 Elonis v. United States 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’ seats have turned over since that decision. The overall tone of Wednesday’s arguments showed some skepticism toward Colorado’s 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 “reasonable observer” of the objective standard might be too open to perceiving speech as threatening in the conflict-filled society of 2023.

“Who is the reasonable person?” Barrett asked, wondering whether if it were speech on a college campus, “is it the reasonable college student?”

“Let’s 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,” Barrett continued. “Purely educational purpose in the teacher’s mind, but students feel physically threatened, they fear for their safety because they don’t understand it.”

She went on to suggest that a Black student sitting in that classroom might perceive the lesson as more threatening than a white peer.

“We might have differences about who we think are the eggshell audience or not,” Barrett said, in an apparent reference to people with overly delicate sensibilities.

Justice Clarence Thomas addressed the same concern about the objective “reasonable person.”

“We’re more hypersensitive about different things now, and people could feel threatened in different ways,” he said.

And Justice Neil M. Gorsuch referred to professors who issue “trigger warnings” to their students about “difficult” educational content.

“We live in a world in which people are sensitive, and maybe increasingly sensitive,” he said.“Aren’t a lot of things harmful that we talk about—and have to talk about—difficult, offensive to reasonable people? Some of our history could count as that. Some of the court’s cases might even count as that.”

A decision in the case is expected by late June.

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