The New Jersey Supreme Court continued in relevant part: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.
But it requires more than the standard of recklessness conveyed in the judge’s instructions to the jury in this case, which provided in part that “[o]ne is said to act recklessly if one acts . . . heedlessly, or foolhardily.” (emphasis added). That language, drawn from the relevant model charge, see Model Jury Charges (Criminal), “Terroristic Threats (N.J.S.A. 2C:12-3(a))” (rev. Sept. 12, 2016), is not consistent with the standard we announce today.
With this understanding of recklessness as “morally culpable conduct” in the context of true threats, we agree that it is constitutionally sufficient for a prosecution of a threat of violence under N.J.S.A. 2C:12-3(a). We agree with Counterman that a mens rea of recklessness, so understood, correctly balances the need to avoid chilling protected speech with the need to protect individuals and society from the profound harms that threats of violence engender.
Like Counterman, we see no reason to “offer greater insulation” to true threats of violence than to true statements made about public figures. 600 U.S. at 80. And like Counterman, we decline to impose incitement’s knowing or purposeful standard on true threats of violence under N.J.S.A. 2C:12-3(a). While the context for an incitement charge is often “political advocacy” that can easily “bleed over . . . to dissenting political speech at the First Amendment’s core,” id. at 81, that is not true for a threat of violence directed against a specific individual.
The ”gross deviation” portion of the Court’s definition is more consistent with criminal negligence than recklessness. But, a reckless mens rea indicates a higher degree of culpability than criminal negligence. Thus, anything that meets the reckless definition logically meets the criminal negligence definition.
