The New Jersey Supreme Court continued in relevant part: Defendant argues that a mens rea of recklessness could “fall short in prosecutions for abrasively criticizing officials in positions of power, who are often stand-ins for displeasure at the government” and “in prosecutions for civil rights advocacy, especially when such rallying for social change involves interactions with law enforcement officers, who are historically suspicious about the alleged threats posed by reform movement sympathizers.” Therefore, at least in prosecutions for “dissenting political speech at the First Amendment’s core,” defendant contends, like his speech in this case, the State must be held to a “strong intent requirement.” (quoting Counterman, 600 U.S. at 81).
We need not decide whether a different intent requirement should apply to prosecutions under N.J.S.A. 2C:12-3(a) for dissenting political speech, because no such speech was prosecuted here. As earlier noted, N.J.S.A. 2C:12-3(a) makes a person guilty of a crime only “if he threatens to commit any crime of violence with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror.” It does not, on its face, criminalize political speech in the form of disparaging government officials, criticizing law enforcement, or even condemning the government itself.
And in this case, defendant was prosecuted for no such thing. He was prosecuted for threatening to shoot a police officer in the head.
Defendant claims that he was prosecuted because he “engaged in a heated debate with an officer . . . and then spoke critically to his Facebook followers, about his government’s criminal justice policies.” Further, defendant submits, he was “punish[ed]” because he “challenged the officers’ policies and called for reform,” while “protesting against the government and the prevailing social order.”
That is incorrect. At trial, the State argued that defendant was guilty of terroristic threats when he said, “worry about a head shot, [epithet].” And the State urged that the threat to kill Officer Healey was given “weight,” “immediacy,” and “legitimacy” from defendant’s April Facebook post that he still had his guns, and defendant’s comment on Facebook, made less than three hours after the threat, “I KNO WHT YU DRIVE & WHERE ALL YU MOTHERFU$KERS LIVE AT.”
An important note to keep in mind when dealing with the First Amendment is that it is meant to protect offensive speech. There would be no point to the First Amendment otherwise. There is no real concern for the infringement of non-offensive speech.