There has long been a tension in the U.S. between the First Amendment right to freedom of speech, and whether people have the right not to receive threats against them. On June 1, the U.S. Supreme Court said that a person’s words alone cannot be the basis of a crime, just because they seem threatening to the reader or listener.
Instead, Chief Justice John Roberts wrote for the 8-1 majority, prosecutors must do more to show of the defendant’s state of mind at the time of the speech in question. The ruling does not provide a clear test for determining state of mind.
The defendant in the case posted hip-hop lyrics on his Facebook page that Roberts described as “crude, degrading and violent.” The New York Times reports that among his writings were fantasies of his wife’s “head on a stick” as a Halloween costume; “making a name” for himself by conducting a school shooting; and killing an FBI agent with a knife.
However, some of the posts indicated that the defendant wrote them as art or therapy. Still, his estranged wife interpreted the lyrics as threats against herself, her children and her family. Prosecutors charged him with making a threat “to injure the person of another,” a federal crime. He was convicted and sentenced to 44 months in prison.
The Court noted that “true threats” are not protected by the First Amendment. On appeal, he argued that the prosecution did not prove his state of mind indicated that his lyrics constituted a true threat against anyone. The Supreme Court agreed, overruling the trial judge and the court of appeals. More than how a reasonable person would view the speech, for a threat to be a crime, the defendant’s “purpose” must be that a threat is communicated, or he or she must have “knowledge” that the communication will be viewed as a threat, Roberts wrote.