Presiding Judge Fisher continued in relevant part: Closer to the issue before us, Kansas’s highest court analyzed and found unconstitutionally broad K.S.A. 2018 Supp. 21-5415(a)(1), a statute similar to N.J.S.A. 2C:12-3(a) in that it proscribes threats made “in reckless disregard of causing fear.” State v. Boettger, 450 P.3d 805, 818 (Kan. 2019). The Kansas Court held that a “reckless disregard” standard rendered the statute unconstitutionally overbroad, concluding that Black does not permit a conviction for speech or expression unless the speaker “possessed the subjective intent to both (1) utter threatening words and (2) cause another to fear the possibility of violence.” Boettger, 450 P.3d at 807-10.
After wading through the various decisions of the federal courts of appeals which interpreted the Black majority opinion and its invocation of the word “intent” in its definition of a true threat as merely suggesting an intent to utter the words, see, e.g., footnote 6, the Boettger court expressed its agreement with Heineman, in which the court held that Black “established that a defendant can be constitutionally convicted of making a true threat only if the defendant intended the recipient of the threat to feel threatened,” 450 P.3d at 814 (quoting Heineman, 767 F.3d at 978), and stated its agreement with the conclusion reached by Bagdasarian as well. The Boettger court thus concluded that Black‘s majority “determined an intent to intimidate was constitutionally, not just statutorily, required.” Id. at 815.
In stating our agreement with the Kansas Supreme Court’s application of Virginia v. Black to a statute similar to N.J.S.A. 2C:12-3(a), we recognize that the matter is not entirely free from doubt. Other state courts have reached different results than the Kansas Supreme Court, see State v. Taupier, 193 A.3d 1, 18-19 (Conn. 2018); Major v. State, 800 S.E.2d 348, 352 (Ga. 2017), while another state court suggested in dictum that a subjective intent to threaten is constitutionally required, Brewington v. State, 7 N.E.3d 946, 964 (Ind. 2014). See also State v. Carroll, (App. Div. 2018) (discussing these concepts in the context of a conviction for retaliation against a witness, N.J.S.A. 2C:28-5(b)). As we have already observed, there is a disagreement among the federal courts of appeals about Black‘s reach, and Black itself did not expressly consider a “reckless disregard” element like that contained in N.J.S.A. 2C:12-3(a).
It is surprising that our nation’s highest court issued the Black opinion with the ambiguous phrase “intent” being used in its analysis. Had the Court specified the type of intent, it could have avoided nationwide litigation at the federal and state level.