U.S. Supreme Court Will Hear "True Threat" First Amendment Case

U.S. Supreme Court Will Hear "True Threat" First Amendment Case

  Wednesday, April 19, 2023    Julie Tappendorf

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Today, the U.S. Supreme Court will hear oral argument in the appeal of a stalking conviction of a Colorado man relating to Facebook posts he made about a local musician. The case involved thousands of Facebook posts made over a period of 18 months, and included the following:

“Die, don’t need you.”

“F-ck off permanently.” 

“Staying in cyber life is going to kill you.” 

"Knock, knock…. five years on FB. I miss you, only a couple physical sightings, you’ve been a picker upper for me more times then I can count…." 

The Colorado appeals court upheld his conviction finding that his Facebook posts qualified as "true threats" so were not protected by the First Amendment. He then appealed to the U.S. Supreme Court.

The Colorado man argues that the First Amendment protects speech from government interference even when that speech may be offensive to others. He also argues that he cannot be held criminally liable for speech that he did not intend as a threat. The State, on the other hand, argues that the proper standard in these cases is whether the recipient would reasonably see the statements as a "serious expression of intent to commit physical violence," which the State argues it demonstrated in this case.

The issue before the Supreme Court is whether the government has to show that the speaker subjectively knew or intended the threatening nature of his or her statement in order to qualify as a "true threat" that would be unprotected under the First Amendment (the Colorado man's argument) or, alternatively, whether it is enough to show that an objective "reasonable person" would consider the statement a threat of violence (the State's argument). We will provide an update when the Supreme Court issues a ruling in this case as it could have an impact on how local governments enforce their own social media policies when comments or posts on the government's page contain threatening language. 

For a good summary of this case and appeal, see Amy Howe, Colorado man’s First Amendment challenge will test the scope of protection for threatening speech, SCOTUSblog (Apr. 17, 2023, 10:12 PM).