“It is thus unfortunate,” he wrote, “that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this court’s jurisprudence.”
In a second dissent, Justice Amy Coney Barrett, joined by Justice Thomas, wrote that an objective standard was sufficient in true-threats prosecutions.
“The bottom line is this,” she wrote, quoting phrases from Justice Kagan’s opinion. “Counterman communicated true threats, which, ‘everyone agrees, lie outside the bounds of the First Amendment’s protection.’ He knew what the words meant. Those threats caused the victim to fear for her life, and they ‘upended her daily existence.’ Nonetheless, the court concludes that Counterman can prevail on a First Amendment defense. Nothing in the Constitution compels that result.”
The Supreme Court considered a similar case in 2014, involving a Pennsylvania man who was prosecuted for making threats on Facebook in the form of rap lyrics after his wife left him.
Chief Justice John G. Roberts Jr., writing for the majority when the case was decided in 2015, said prosecutors must do more than prove that reasonable people would view statements as threats. The defendant’s state of mind matters, the chief justice wrote, though he declined to say just where the legal line is drawn.
Justice Barrett suggested that Justice Kagan’s position in the new case, Counterman v. Colorado, No. 22-138, was unprincipled.
“The reality,” she wrote, “is that recklessness is not grounded in law, but in a Goldilocks judgment: Recklessness is not too much, not too little, but instead ‘just right.’”
Adam Liptak
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