As the presidential primary season heats up, bringing with it the usual blitz of advertising and debates, we can expect to see attacks by political rivals reach a boiling point. To a certain extent, we have become accustomed to these verbal barrages, even though they have a real effect on our body politic, creating division and sparking anger.
Candidates and political leaders regularly talk in violent terms about the opposition and, as we know, such rhetoric has spilled over from campaign politics into society more broadly. January 6 was the most visceral and consequential example of words leading to actions.
Some may reasonably believe that, in an era of increased political division and violent threats aimed at government officials, the First Amendment right to the freedom of speech must be curtailed to prevent threatening language. Indeed, even members of the Supreme Court have faced intimidating protests near their homes and, apparently, threats on their lives.
Despite this lurking (and sometimes very real) sense of political violence, the Supreme Court’s 7-2 decision in Counterman v. Colorado appropriately balanced robust protection for the First Amendment freedom of speech with the necessity of ensuring that civil servants in our society are protected from true threats and violence.
Threats of political violence have been part of American politics since even before John Jay famously claimed he could travel at night by the light of his own burning effigies. But today, the easy access to deadly weapons and the divisions stoked by some political leaders enhance the likelihood of actual political violence.
For this reason, I had real concerns that the Supreme Court would take a hardline approach, severely limiting protections for so-called threatening speech.
To be sure, the threats aimed at civil servants such as Georgia Secretary of State Brad Raffensperger (R), Arizona Secretary of State (now Governor) Katie Hobbs (D), and many others in the wake of the 2020 elections were heinous examples of the worst sort of political intimidation. On some level, it would have made sense for the Supreme Court to restrict First Amendment protections for spoken threats as an effective way to deter such behavior.
Fortunately, however, the Supreme Court’s decision in Counterman recognized the important First Amendment principles served by protecting some level of threatening speech, while at the same time protecting the civil servants who largely dedicate their lives to the people.
The critical upshot of the Counterman decision is that political hyperbole and even some threatening speech remain protected by the First Amendment.
This is critical for two reasons. First, democracy requires a politically active citizenry. Democracy will simply cease to exist if we, the people, must constantly self-censor for fear that our words alone may be used to prosecute us for a crime.
Second, and perhaps counterintuitively, the protection of some threatening speech may actually reduce real political violence, because it serves as a sort of safety valve through which the pressures of the tumultuous democratic process may be released as a stream of words rather than an explosion of violent acts.
While we can’t be sure exactly what role the specter of January 6 or threats on their own lives may have played in the justices’ decision in Counterman, we do know that the opinion balances the often competing interests of free speech and security, requiring prosecutors to prove the speaker’s subjective state of mind in order to get a conviction for threatening speech.
This may sound like legal mumbo-jumbo, but requiring proof of a defendant’s subjective state of mind is significant, because it means the prosecutor must prove what the accused is actually thinking, which requires evidence, rather than using an objective standard which simply looks at what a make-believe “reasonable person” would think if he or she were to hear the threatening language.
In that way, Justice Kagan’s opinion makes clear that a reckless state of mind is required and that without that subjective state of mind, nobody may be convicted of a pure speech crime — even if the speech is threatening. This means that the First Amendment properly protects political speech and even threatening hyperbole.
On the other hand, a recklessness standard is a lower bar than other specific intent crimes — a prosecutor need only show the speaker was reckless — which makes it slightly easier for a prosecutor. This protects important societal interests by helping to ensure civil servants can do their jobs without fear of actual violence.
The result is a reasonable balance. In the midst of insult-slinging and seemingly endless chaos on the political stage, I, for one, breathe a sigh of relief.
Jared Carter is a professor of First Amendment law at Vermont Law and Graduate School and former associate director of the Cornell Law School First Amendment Clinic.