EFF Intern Reema Moussa authored this post.

In our highly digitized society, online speech like posts, messages, and emails, can be taken out of context, repackaged in ways that distort or completely lose their meaning, and spread far beyond the intended recipients.

With this in mind, we are urging the Supreme Court to rule that any time the government seeks to prosecute someone for threatening violence against another person, it must show that the speaker subjectively intended to threaten before their speech can be considered a "true threat" not protected by the First Amendment.

In a brief filed with the Student Press Law Center, we argued that people should not face prison time because they misjudged how many people would see their speech or how an unintended recipient would react to the speech

The First Amendment requires that true threats are only those in which a speaker subjectively intends to threaten someone, so as to prevent protected speech such as humor, art, misunderstandings, satire, and misrepresentations, we told the court.

True threats are one of the very few categories of speech that has no constitutional protection. For this reason, it is important that true threats be narrowly defined. But to date, the Supreme Court has not decided the required state of mind a speaker must have. Some state and lower courts require that the speaker have a subjective intent to threaten the person when they speak. But other courts, and some state laws, believe the First Amendment only requires that an objectively reasonable person would perceive the statement to be a threat of violence.

The Supreme Court is considering a case called Counterman v. Colorado to resolve this question. The Court previously considered the question in 2014 in Elonis v United States, in which EFF also filed a friend of the court brief, but ultimately decided that case on other grounds.

In our Counterman brief, we argue that the First Amendment requires the subjective standard, particularly given the decontextualization that readily occurs in online communication, and social media in particular.

What’s more, speech that a reasonable person may interpret as a violent threat includes much protected and valuable speech. There is no historical First Amendment exception for violent language in general. To be clear, EFF and the Student Press Law Center do not challenge the need to have a true threats exception to the First Amendment. We acknowledge the seriousness of true threats and the speech-inhibiting effects they can have.

But the requirement of a subjective intent to threaten remains necessary to distinguish these true threats from the misunderstandings and artistic expression discussed above, striking the proper balance between protected and unprotected speech.

Online communication, while providing countless benefits and opportunities for connection and collaboration in our digitized society, also poses challenges for understanding each other. As speech spreads on online platforms, its original context is easily obscured and often lost completely.

And it's difficult to control just who our audience is. Even if an account is limited to those who are in our network of friends, trusted confidants, or contacts, it can be difficult to limit the spread of virtual messages through screenshotting, reposting, and engagement with that content.

As our brief states:

“A speaker’s subjective intent standard is also a practical necessity when dealing with social media and other online communications because a purely objective standard, negligence or otherwise, does not account for the ways in which communication on the Internet can strip speech of vital context, necessary to understand the words’ full meaning, or how quickly speech can be recontextualized from the time it is first posted online until it ultimately reaches a person who interprets the speech as threatening. Indeed, the original speaker may have never intended for the that recipient to see the speech that caused them fear.”

The Supreme Court is scheduled to hear arguments in the case on April 19, with a decision expected in June.


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