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June 22, 2020

No new cert grants from SCOTUS as Justice Thomas laments failure to take up whether First Amendment limits criminalizing "reckless threats"

This morning's Supreme Court order list yet again lacks any new grants of certiorari (which, as explained in this recent post, I have come to expect from this court).  But, showcasing as he did last week that he will call out his colleagues for failing to take up issues he considers important, Justice Thomas has a dissent from the denial of cert in Kansas v. Boettger, No. 19–1051.  Here is how this six-page dissent gets started:

Kansas asks us to decide whether the First Amendment prohibits States from criminalizing threats to “[c]ommit violence . . . in reckless disregard of the risk of causing . . . fear.” Kan. Stat. Ann. §21–5415(a)(1) (2018).  Respondent Timothy Boettger was convicted for telling the son of a police detective that he “‘was going to end up finding [his] dad in a ditch.’” ___ Kan. ___, ___, 450 P. 3d 805, 807 (2019).  Respondent Ryan Johnson was separately convicted for telling his mother that he “‘wish[ed] [she] would die,’” that he would “‘help [her] get there,’” and that he was “‘going to f***ing kill [her] a***.’” ___ Kan. ___, ___, 450 P. 3d 790, 792 (2019).  The Kansas Supreme Court overturned both convictions and held that reckless threats are protected by the First Amendment, relying on Virginia v. Black, 538 U.S. 343 (2003).

In my view, the Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate. See Elonis v. United States, 575 U.S. 723, 760– 767 (2015) (dissenting opinion).  It appears to follow that threats of violence made in reckless disregard of causing fear may be prohibited.  The Kansas Supreme Court reached the opposite conclusion by overreading our decision in Black, which did not answer the question presented here.  Other courts looking to Black, however, have upheld similar statutes.  State v. Taupier, 330 Conn. 149, 193 A.3d 1 (2018); Major v. State, 301 Ga. 147, 800 S.E.2d 348 (2017).  I would grant the petition for certiorari to resolve the split on this important question.

June 22, 2020 at 09:53 AM | Permalink

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