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Sean D. Reyes
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Threats and the First Amendment: SCOTUS to Hear Arguments in Stalking Case

April 4, 2023

Utah Attorney General Sean D. Reyes joined a bipartisan group of 26 attorneys general, led by Illinois Attorney General Kwame Raoul, in filing an amicus brief with the U.S. Supreme Court supporting states’ efforts to protect their residents from violent threats.

The brief was filed in support of Colorado in Counterman v. Colorado, which is pending with the Supreme Court. The case involves a Colorado man who was convicted of stalking a local singer-songwriter after he sent her threatening messages, including death threats, over the course of two years. The question before the Supreme Court is whether the man’s statements were protected speech and could not be used to convict him. The man argues that a state is required in a criminal case to prove that he intended to frighten the victim; whereas, Colorado argues a jury can look to context to determine whether the threat was a so-called “true threat.”

In the brief, the attorneys general argue the First Amendment does not protect statements that an objectively reasonable person would understand as being serious threats to inflict violence. Since the First Amendment was ratified, many states have used an objective standard to regulate threats, both civilly and criminally. For example, this objective standard has been important to states’ ability to protect students from threatened school shootings, abuse victims from threatened domestic violence, and individuals of all backgrounds from threats of hate crimes.

Additionally, the coalition explain states sometime use subjective standards, such as requiring proof of a speaker’s intent to threaten, before enforcing a penalty. However, the choice to use a subjective or objective standard has always been left to the states since they can address policy concerns and local needs. They argued that if the First Amendment is interpreted to always require a subjective standard, it could jeopardize a range of important state laws.

Joining Attorneys General Raoul and Reyes in submitting the brief were the AG’s of Alaska, Arizona, Delaware, the District of Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Mississippi, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Vermont, Virginia and Wyoming, as well as Connecticut’s chief state’s attorney.

Read the multistate amicus brief here.