The three-judge panel continued in relevant part: Defendant argues N.J.S.A. 2C:12-3(a) also goes too far because, by authorizing convictions based on speech made in “reckless disregard” for its consequences, the statute crosses the constitutional line the Supreme Court drew in Black. That is, Black held that Virginia’s statute did “not run afoul of the First Amendment” because it did not just ban cross burning; it banned cross burning “with intent to intimidate.” 538 U.S. at 362. The Court held that a state can punish threatening speech or expression only when the speaker “means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Id. at 359 (emphasis added).
Following Black, some federal courts of appeals recognized that, when charging a threat crime, the prosecution must prove that the speaker intended to intimidate or terrorize and anything less would fall outside the “true threat” exception to the First Amendment’s protection. In United States v. Bagdasarian, 652 F.3d 1113, 1118 (9th Cir. 2011), the court of appeals, recognizing the inconsistencies in its own pre-Black cases, concluded in the wake of Black “that ‘the element of intent is the determinative factor separating protected expression from unprotected criminal behavior'” (quoting United States v. Gilbert, 813 F.2d 1523, 1529 (9th Cir. 1987)). And, so, the Bagdasarian court held that an Act of Congress, which made it a felony to threaten to kill or do bodily harm to a major presidential candidate, required proof that “the speaker subjectively intended the speech as a threat.” Ibid. Another court of appeals reached this same result in considering a prosecution brought under an Act of Congress which criminalized the transmission in interstate commerce of “any communication containing any threat to injure the person of another.” United States v. Heineman, 767 F.3d 970, 972, 978-79 (10th Cir. 2014) (reading Black to require proof that the defendant “intended the recipient to feel threatened”). And a third found it unnecessary to decide the issue but stated in dictum that “it is more likely an entirely objective definition is no longer tenable.” United States v. Parr, 545 F.3d 491, 500 (7th Cir. 2008).
The prosecution likely argued that the “intent” referenced in Supreme Court precedent referred to any criminal intent. The defense successfully argued that the “intent” referenced “specific intent”, i.e., only a purposeful or knowing intent.
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