This post reads like a position of nuance, acknowledging a good-faith attempt to square a fundamentally challenging circle, and the Court not making it worse but not making it a whole lot better.
But the purpose of writing on the internet is to tell me if I should be OUTRAEG or not!
Compare supra ("'[O]kay, yes, that’s what we *said*, but what we *meant* was this.'"), with Cohens v. Virginia, 6 Wheat. 264, 399 (Marshall, C.J.) ("It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.").
Gorsuch and Sotomayor are two of the most likely judges to be found in crossovers that don't fit neatly along the usual left/right spectrum, and, as the Chaplinsky-twitter dichotomy shows us, any case with Speech Clause implications is likely to be such a case. We also find them together on last week's Arizona v Navajo Nation and Pugin v Garland.
My unlearned distinction between objective and subjective standards doesn’t seem to map onto the legal distinction, although I think it’s mostly due to my own mental sloppiness. When I hear “objective” and “subjective”, I think “precise, measurable, externally demonstrable” versus “vague, arbitrary, non-auditable”. However, hearing about various legal tests described as objective and subjective makes me realize I should probably be thinking about the distinction more like “as judged by an outside observer” vs “as judged by the person performing or affected by [action X]”. Am I on the right track? I feel unsure because that characterization of legally subjective seems to encompass the grammatical sense of both “subject” (the person doing X) and “object” (affected by X), while legally objective, if I’m still analogizing to grammatical concepts, is closer to the sense of “third person”. I doubt I’m the only one confused by this terminology. If you felt it was worth a brief explanation, I would be grateful!
While despising Justice Thomas as a corrupt official, his rant does make sense, at least to an ordinary person. The text of First Amendment is clear and categorical - Congress shall make no law ... abdirging the freedom of speech. There are no references to true threats, defamation or what. This is a problem which should have been addressed by legislation (basically 1st should have been amended long time ago). Instead we're in the situation where as you said yourself, there's no clear understanding of what is permitted and what is not, and one needs to get through Supreme Court rulings to figure that out.
Yeah, I think the plain reading of the First Amendment makes the entire system of classification and secrets - and the Espionage Act - unconstitutional, it makes all bans on defamation unconstitutional, it makes threats protected speech and it drives a coach and horses through copyright law.
The problem with plain readings is that if you take a plain reading of both the First and Second Amendments, then an American citizen is entitled to stand on the street, aiming a gun at a police officer and shouting "I'm going to kill you, you ****ing pig", and they have committed no crime until they pull the trigger.
The US constitutional interpretive tradition has never been to take a plain reading over common sense, however allegedly "textualist" the judge interpreting the constitution. The traditional formulation of this is "The Constitution is not a suicide pact" - from Terminiello vs Chicago and from Kennedy vs Mendoza-Martinez. The upshot is that the development of doctrines like the true threats doctrine has pre-empted the need to amend the constitution to resolve questions like this - which means that switching to a plain text interpretive tradition would require a large number of amendments creating exceptions to the sweeping text of the constitution.
The European Convention on Human Rights is one of the few judiciable statements of rights that can't be easily amended or avoided by the legislature(s) it governs. It does operate in an interpretive tradition that takes the text more literally than the US does. It's worth noting how many more qualifications it has in Article 10 (the equivalent of the First Amendment):
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Well, if one considers old movies, at times when the Constitution was written, standing on the street drunk, with guns in both hands and screaming "I gonna kill you m...r!" wouldn't probably even have one charged with crime at that time.
The problem is that instead of admitting that Constitution has to be amended and amending it, we have SCOTUS basically legislating for us (because nobody else can) using false pretension of "what Founding Fathers could have meant". This is of course all made up, because nobody knows for sure - it is totally possible that Founding Fathers indeed meant that - someone talked shit about you? You have a gun, call him out on a duel and shoot his balls out. You've read Mayne Reid's Headless Horseman - Maurice Gerald, after being put down by Calhoun, called him on a duel and shot him. The idea that he instead would leave the bar, call a lawyer and file a lawsuit against him would probably have Founding Fathers laughing all over the floor.
At the time when the Constitution was written, that would've gotten you arrested under your state's law, because the First Amendment (and the rest of the Bill of Rights) didn't apply against the states at all.
Incorporating the Bill of Rights against the states by the Fourteenth Amendment was sorely needed and overdue, but it does make things more complicated.
I wonder whether people actually got arrested for such behavior back then (except military soldiers on duty, there were examples indeed). This is something I'm not aware of. Is there any literature on the subject?
If spending a million dollars is speech, then why not the expressive act of trigger pulling. The crime might only be the eventual resting position, or possibly a portion of the trajectory, of a fusillant projectile.
Spending a million dollars to have a hitman kill your business partner is not speech. Spending $1 million on a Super Bowl ad is, or at least the government may not forbid you from spending that money on a political ad while permitting you to spend it hawking toilet cleaner.
Outside of a few narrowly defined categories such as threats, fraud, and criminal conspiracy, the government may not distinguish between legal and illegal acts strictly on the basis of the content of the contained speech.
Unfortunately, there are no words "except for narrowly defined categories A,B,C" in the text of the 1st Amendment. This is why it's all a made-up circus.
Spending hefty sums to promote the election of officials who permit toxic dumping that undermines health for generations, for example, would be protected as “speech” even if every reasonable person recognized both the threat and the recklessness.
So is running ads promoting congressional candidates who support a communist revolution, who are Neo-Nazis, or who favor the voluntary extinction movement. “Reasonable people” thinking that idea is a threat does not justify censoring it. People with ugly or dangerous ideas have the same free-speech rights as everybody else, because there is no one who can be trusted to determine which ideas to allow and which to forbid. Or do you want to see what happens when President DeSantis gets to determine who is allowed to speak?
It’s a little shocking that a reader of this blog would be unaware of the foundational principles of free speech.
"I don’t think Counterman will lead to a surge of threat prosecutions." Certainly here in Colorado, it's going to lead to a *decline* in stalking-emotional distress prosecutions. Stalking-emotional distress (the crime of which Counterman was charged and convicted) was hard enough to prove even before throwing a recklessness mens rea element into the mix.
Do you think a jury would look at Counterman’s course of conduct and not be willing to conclude that he was at least reckless in not realizing he was intimidating her?
If he's retried, and if the jury doesn't buy the defense argument that his mental illness made him unable to understand that he was intimidating her, sure. But the defense argument is going to be said mental illness.
You're exactly right. We now have to prove an additional element that we didn't have before. And that element's going to be really problematic in a lot of cases - in Counterman's own case, his attorneys will argue that his mental illness kept him from being able to comprehend the possibility that his messages could be perceived as threatening, and I can foresee many defendants arguing "I never meant for her to take it badly, I don't see how anyone could perceived it that way"
There's no getting around the messiness. What counts as reckless driving is equally subjective and culturally contingent. Recklessness needs to be a part of legal standards in many areas, and I think the court is right that this should be one of them.
The only alternative is to bake injustice into the law itself rather than the law as practically applied. I prefer the latter option.
This is one of those areas where the common law is critical, because no statute could ever define “reckless” in this context with enough specificity to guide the courts.
With prohibitions on shifting definitions of ideologically motivated "hate speech" proliferating throughout the Western liberal democratic world, we need a robust First Amendment more than ever. The United States is quickly becoming an outlier in matters of free speech, at least insofar as restrictions on government are concerned (private "content moderation" policies are another matter entirely). The Court basically borrowed the NYT v. Sullivan "recklessness" standard. Here's to hoping that lower courts give it teeth.
I appreciated the Cato comparison. For some reason "Carthago delenda est" has stuck in my head from middle school through a whole classics degree.
I also agree with Ken's summary, that this doesn't address the standards problem we already have: 'In my view, the recklessness standard merely repeats the problems of the so-called “objective standard.”'
My question is one of psychology. With social media comments, if one has never met the threatener in person, how does the threatened person determine their mental state? Or intent? Or recklessness? (I had just finished reading SCOTUSblog before you popped up in my email, Ken.)
I'm going to make it even messier by saying it depends on who you're writing to with such reckless treatises -it does depend so much on the target.
Your high school teacher is one kind of target and the local chief of police or federal lawman is another and I wouldn't be counting on the 1st Amendment protecting you too much on your speech because it's unlawful to threaten any LEO in any way-on the internet or in person.
It'll get you arrested and charged with threatening a officer of the court, and that's a real no-no.
And I wouldn't be waiting on the SC to rule on it, either.
So the game boys can swear all they like to one another or their neighbors but they'd best keep an eye on who they're threatening.
Those questions in the second-to-last paragraph really capture the essence of Trump's defense to accusations of acts different from uttering threats (as well as those of uttering threats). He seems to operate in a sort of Platonic separate reality, much like Justice Thomas. That crap may be fine for bloviators and writers, but the Court would serve the Constitution better with a more Aristotelian viewpoint. Damn the Federalist Society and Opus Dei.
"Everyone standing politely aside while Thomas rants" got me chortling
Wait which food? I'm due for a booster!
I'm gonna assume McNuggets since no one knows exactly what part of a chicken is a McNugget.
The nuggets are the parts of the rooster which are removed in order to produce a capon.
This post reads like a position of nuance, acknowledging a good-faith attempt to square a fundamentally challenging circle, and the Court not making it worse but not making it a whole lot better.
But the purpose of writing on the internet is to tell me if I should be OUTRAEG or not!
This might be the best thing I’ve ever seen Sotomayor write.
It’s very smart.
A low bar.
Compare supra ("'[O]kay, yes, that’s what we *said*, but what we *meant* was this.'"), with Cohens v. Virginia, 6 Wheat. 264, 399 (Marshall, C.J.) ("It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.").
Interesting combinations of justices for the various positions.
Not surprising though.
Gorsuch and Sotomayor are two of the most likely judges to be found in crossovers that don't fit neatly along the usual left/right spectrum, and, as the Chaplinsky-twitter dichotomy shows us, any case with Speech Clause implications is likely to be such a case. We also find them together on last week's Arizona v Navajo Nation and Pugin v Garland.
My unlearned distinction between objective and subjective standards doesn’t seem to map onto the legal distinction, although I think it’s mostly due to my own mental sloppiness. When I hear “objective” and “subjective”, I think “precise, measurable, externally demonstrable” versus “vague, arbitrary, non-auditable”. However, hearing about various legal tests described as objective and subjective makes me realize I should probably be thinking about the distinction more like “as judged by an outside observer” vs “as judged by the person performing or affected by [action X]”. Am I on the right track? I feel unsure because that characterization of legally subjective seems to encompass the grammatical sense of both “subject” (the person doing X) and “object” (affected by X), while legally objective, if I’m still analogizing to grammatical concepts, is closer to the sense of “third person”. I doubt I’m the only one confused by this terminology. If you felt it was worth a brief explanation, I would be grateful!
While despising Justice Thomas as a corrupt official, his rant does make sense, at least to an ordinary person. The text of First Amendment is clear and categorical - Congress shall make no law ... abdirging the freedom of speech. There are no references to true threats, defamation or what. This is a problem which should have been addressed by legislation (basically 1st should have been amended long time ago). Instead we're in the situation where as you said yourself, there's no clear understanding of what is permitted and what is not, and one needs to get through Supreme Court rulings to figure that out.
Yeah, I think the plain reading of the First Amendment makes the entire system of classification and secrets - and the Espionage Act - unconstitutional, it makes all bans on defamation unconstitutional, it makes threats protected speech and it drives a coach and horses through copyright law.
The problem with plain readings is that if you take a plain reading of both the First and Second Amendments, then an American citizen is entitled to stand on the street, aiming a gun at a police officer and shouting "I'm going to kill you, you ****ing pig", and they have committed no crime until they pull the trigger.
The US constitutional interpretive tradition has never been to take a plain reading over common sense, however allegedly "textualist" the judge interpreting the constitution. The traditional formulation of this is "The Constitution is not a suicide pact" - from Terminiello vs Chicago and from Kennedy vs Mendoza-Martinez. The upshot is that the development of doctrines like the true threats doctrine has pre-empted the need to amend the constitution to resolve questions like this - which means that switching to a plain text interpretive tradition would require a large number of amendments creating exceptions to the sweeping text of the constitution.
The European Convention on Human Rights is one of the few judiciable statements of rights that can't be easily amended or avoided by the legislature(s) it governs. It does operate in an interpretive tradition that takes the text more literally than the US does. It's worth noting how many more qualifications it has in Article 10 (the equivalent of the First Amendment):
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Well, if one considers old movies, at times when the Constitution was written, standing on the street drunk, with guns in both hands and screaming "I gonna kill you m...r!" wouldn't probably even have one charged with crime at that time.
The problem is that instead of admitting that Constitution has to be amended and amending it, we have SCOTUS basically legislating for us (because nobody else can) using false pretension of "what Founding Fathers could have meant". This is of course all made up, because nobody knows for sure - it is totally possible that Founding Fathers indeed meant that - someone talked shit about you? You have a gun, call him out on a duel and shoot his balls out. You've read Mayne Reid's Headless Horseman - Maurice Gerald, after being put down by Calhoun, called him on a duel and shot him. The idea that he instead would leave the bar, call a lawyer and file a lawsuit against him would probably have Founding Fathers laughing all over the floor.
At the time when the Constitution was written, that would've gotten you arrested under your state's law, because the First Amendment (and the rest of the Bill of Rights) didn't apply against the states at all.
Incorporating the Bill of Rights against the states by the Fourteenth Amendment was sorely needed and overdue, but it does make things more complicated.
I wonder whether people actually got arrested for such behavior back then (except military soldiers on duty, there were examples indeed). This is something I'm not aware of. Is there any literature on the subject?
Good question, and I don't know the answer!
If spending a million dollars is speech, then why not the expressive act of trigger pulling. The crime might only be the eventual resting position, or possibly a portion of the trajectory, of a fusillant projectile.
Spending a million dollars to have a hitman kill your business partner is not speech. Spending $1 million on a Super Bowl ad is, or at least the government may not forbid you from spending that money on a political ad while permitting you to spend it hawking toilet cleaner.
Outside of a few narrowly defined categories such as threats, fraud, and criminal conspiracy, the government may not distinguish between legal and illegal acts strictly on the basis of the content of the contained speech.
Unfortunately, there are no words "except for narrowly defined categories A,B,C" in the text of the 1st Amendment. This is why it's all a made-up circus.
Generally it’s the associated action that is criminal — soliciting a murder, stealing someone’s money, coercing someone into doing something.
Disclosing classified information, copyright violation, defamation have no associated criminal action.
Cherrypicking.
Spending hefty sums to promote the election of officials who permit toxic dumping that undermines health for generations, for example, would be protected as “speech” even if every reasonable person recognized both the threat and the recklessness.
It is protected speech. And it should be.
So is running ads promoting congressional candidates who support a communist revolution, who are Neo-Nazis, or who favor the voluntary extinction movement. “Reasonable people” thinking that idea is a threat does not justify censoring it. People with ugly or dangerous ideas have the same free-speech rights as everybody else, because there is no one who can be trusted to determine which ideas to allow and which to forbid. Or do you want to see what happens when President DeSantis gets to determine who is allowed to speak?
It’s a little shocking that a reader of this blog would be unaware of the foundational principles of free speech.
Dollars are not ideas, and “freedoms” are merely vague suggestions when access to eyeballs, eardrums, hearts minds is vastly and artificially unequal.
No surprise to find snide commenters, here, or anywhere.
"I don’t think Counterman will lead to a surge of threat prosecutions." Certainly here in Colorado, it's going to lead to a *decline* in stalking-emotional distress prosecutions. Stalking-emotional distress (the crime of which Counterman was charged and convicted) was hard enough to prove even before throwing a recklessness mens rea element into the mix.
Do you think a jury would look at Counterman’s course of conduct and not be willing to conclude that he was at least reckless in not realizing he was intimidating her?
(Leaving aside if he had an insanity defense.)
If he's retried, and if the jury doesn't buy the defense argument that his mental illness made him unable to understand that he was intimidating her, sure. But the defense argument is going to be said mental illness.
As a broader matter, I would think Counterman would discourage prosecutions because now the prosecutors would have to prove two things, and not one.
Or maybe I'm missing or misunderstanding something?
You're exactly right. We now have to prove an additional element that we didn't have before. And that element's going to be really problematic in a lot of cases - in Counterman's own case, his attorneys will argue that his mental illness kept him from being able to comprehend the possibility that his messages could be perceived as threatening, and I can foresee many defendants arguing "I never meant for her to take it badly, I don't see how anyone could perceived it that way"
And given how commonly stalking leads to actual bodily harm to the victim, I’m not best pleased
There's no getting around the messiness. What counts as reckless driving is equally subjective and culturally contingent. Recklessness needs to be a part of legal standards in many areas, and I think the court is right that this should be one of them.
The only alternative is to bake injustice into the law itself rather than the law as practically applied. I prefer the latter option.
This is one of those areas where the common law is critical, because no statute could ever define “reckless” in this context with enough specificity to guide the courts.
Sure is a shame you don't have a podcast about the first amendment you could use as a platform to really talk at length about this decision.
It’s a shame my taint is over here and your nose is over there
Man, you're getting meaner in your old age...
With prohibitions on shifting definitions of ideologically motivated "hate speech" proliferating throughout the Western liberal democratic world, we need a robust First Amendment more than ever. The United States is quickly becoming an outlier in matters of free speech, at least insofar as restrictions on government are concerned (private "content moderation" policies are another matter entirely). The Court basically borrowed the NYT v. Sullivan "recklessness" standard. Here's to hoping that lower courts give it teeth.
I appreciated the Cato comparison. For some reason "Carthago delenda est" has stuck in my head from middle school through a whole classics degree.
I also agree with Ken's summary, that this doesn't address the standards problem we already have: 'In my view, the recklessness standard merely repeats the problems of the so-called “objective standard.”'
When the post says the majority cites Chaplinsky, does it mean the dissent? The majority steers clear of it, as far as I can tell.
Yes, that should have said dissent. Fixed. Thanks.
My question is one of psychology. With social media comments, if one has never met the threatener in person, how does the threatened person determine their mental state? Or intent? Or recklessness? (I had just finished reading SCOTUSblog before you popped up in my email, Ken.)
I'm going to make it even messier by saying it depends on who you're writing to with such reckless treatises -it does depend so much on the target.
Your high school teacher is one kind of target and the local chief of police or federal lawman is another and I wouldn't be counting on the 1st Amendment protecting you too much on your speech because it's unlawful to threaten any LEO in any way-on the internet or in person.
It'll get you arrested and charged with threatening a officer of the court, and that's a real no-no.
And I wouldn't be waiting on the SC to rule on it, either.
So the game boys can swear all they like to one another or their neighbors but they'd best keep an eye on who they're threatening.
Some people just can't take a joke.
Those questions in the second-to-last paragraph really capture the essence of Trump's defense to accusations of acts different from uttering threats (as well as those of uttering threats). He seems to operate in a sort of Platonic separate reality, much like Justice Thomas. That crap may be fine for bloviators and writers, but the Court would serve the Constitution better with a more Aristotelian viewpoint. Damn the Federalist Society and Opus Dei.