Terroristic Threats and the First Amendment (Part 4)

The Appellate Division continued in relevant part: We also recognize that the Supreme Court of the United States has been presented with opportunities to express its view of the “reckless disregard” element in this setting but has declined those invitations. For example, in Elonis v. United States, 575 U.S. 723, 740 (2015), the Court expressly chose not to say whether reckless speech could support a threat conviction under 18 U.S.C. § 875(c). That two members of the Court, for different reasons, suggested recklessness might be sufficient, 575 U.S. at 745-48 (Alito, J., concurring in part and dissenting in part); id. at 759-60 (Thomas, J., dissenting), is of no moment.

Later, in Perez v. Florida, 137 S. Ct. 853 (2017), the Court denied a writ of certiorari in a case that might have settled the issue; a single Justice stated her view that both Watts and Black had already made “clear that to sustain a threat conviction without encroaching upon the First Amendment, States must prove more than the mere utterance of threatening words – some level of intent is required” and “it is not enough that a reasonable person might have understood the words as a threat – a jury must find that the speaker actually intended to convey a threat.” Id. at 855 (Sotomayor, J., concurring).

More recently, the Court denied Kansas’s petition for a writ of certiorari in Boettger; this time only Justice Thomas dissented from the denial of certiorari, expressing a view that none of the Court’s prior decisions prohibited utilization of a reckless disregard standard in a threat case, that the Court should resolve the conflict among the federal courts of appeals and decisions rendered by state courts, that “the Constitution likely permits States to criminalize threats even in the absence of any intent to intimate,” Kansas v. Boettger, 140 S. Ct. 1956, 1958-59 (2020) (Thomas, J., dissenting), and that the Kansas Supreme Court had “overread” Black, id. at 1956.

It is no surprise that the three Justices who have indicated their opinions on the intent issue have reputations of being at the far ends of the political spectrum. Justice Sotomayor is the most pro defendants’ rights member of the Court. Justices Thomas and Alito are the most pro-prosecution members of the Court.