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Kansas Supreme Court Holds Threat of Violence Statute Violates First Amendment to Extent it Criminalizes ‘Reckless’ Conduct

The Supreme Court of Kansas held on October 25, 2019, that the statute criminalizing speech determined to be a threat of violence is unconstitutional, at least as far as it prohibits “reckless disregard” for others.

When Timothy Boettger was angry about the police refusing to investigate the shooting death of his sister’s dog, he vented his anger in words to a friend, criticizing the cops. He told his friend that “he had some friends up in the Paseo area in Kansas City that don’t mess around, and that [his friend] was going to end up finding [his] dad in a ditch.” His friend’s dad was a Douglas County Sheriff’s deputy.

When this friend reported what Boettger said to the police (and his dad), Boettger was charged with one count of making a criminal threat under K.S.A. 2018 Supp. 21-5415(a)(1). Boettger took his case to a jury, and he was found guilty. He appealed and lost. Then the Kansas Supreme Court granted his petition for review and reversed.

Under § 21-5415(a)(1), a “criminal threat” includes a threat to “[1] commit violence communicated with intent to place another in fear ... or [2] in reckless disregard of the risk of causing such fear.” Boettger’s argument was that the second part of this provision is unconstitutional because it encompasses more than a true threat and could punish someone for uttering distasteful words that don’t constitute a true threat.

The First Amendment to the U.S. Constitution says that “Congress shall make no law ... abridging the freedom of speech.” This prohibition applies to states through the Equal Protection Clause of the Fourteenth Amendment. Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972). This means that neither the federal nor the state government can prohibit speech “simply because society itself finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397 (1992). But there are limits. For example, it has been recognized by the Supreme Court that the government may still prohibit speech and freedom of expression that is obscene, defamatory, “fighting words,” incitement to breach the peace, and “true threats.” Virginia v. Black, 538 U.S. 343 (2003).

A famous example of a “true threat” came in the 1960s when a young man was drafted to serve in the Vietnam War. He said during a protest that, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. [Lyndon B. Johnson, the President at the time].” The U.S. Supreme Court held that his speech was not a true threat but mere “political hyperbole” and was therefore protected by the First Amendment. Watts v. United States, 394 U.S. 705 (1969).

Many years later, the Supreme Court then further defined “true threats” as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.” Virginia v. Black, 538 U.S. 343 (2003). In that case, Barry Black was convicted in Virginia for burning a cross under a state law that made it illegal to do such an act with the intent to intimidate a person or group of people. A plurality of the Supreme Court agreed that the law was unconstitutional.

So, what does the word ‘mean’ mean? The Kansas Supreme Court, in a lengthy and detailed opinion, explained it is a transitive verb, which is defined as “to have as a purpose or an intention; intent; to design, intend, or destine for a certain purpose of end.” This was important for Boettger’s case because it turned on whether actually he “meant” to commit the violent acts to which he alluded.

Does § 21-5415(a)(1)’s “reckless disregard” support a “true threat” not protected by the First Amendment? The Court turned to another U.S. Supreme Court case more closely related to Boettger’s case. In Elonis v. United States, 135 S. Ct. 2001 (2015), Anthony Elonis posted on Facebook a rap song he wrote that contained violent language. He posted it with disclaimers that it was all fake, but the federal government still charged him with transmitting in interstate commerce a “communication containing any threat ... to injure the person of another,” under 18 U.S.C. § 875(c).

At trial, Elonis requested a jury instruction that the government had to prove he intended to harm someone. The court rejected his request and instead told the jury that they could decide what a “reasonable person” would have thought in such a situation. Though the statute didn’t contain a mens rea or mental requirement that a person have the specific intent to harm someone, the Supreme Court said that the mere negligence standard, which is how the trial court instructed the jury, was not enough. The Court sent the case back to the lower courts to resolve this issue.

Canvassing other federal and state courts that have analyzed Black, the Kansas Supreme Court disagreed with their holdings. They held that mere recklessness is enough to find someone had made true threats not protected by the First Amendment. “Our reading of Black differs,” the Court said. “The speaker must actually intend to convey a threat. Acting with awareness that words may be seen as a threat [which is all recklessness requires] leaves open the possibility that one is merely uttering protected political speech, even though aware some might hear a threat.”

Thus, the Court held that the portion of § 21-5415(a)(1) requiring that only “reckless disregard” for causing fear is “unconstitutionally overbroad because it can apply to statements made without the intent to cause fear or violence.” The language “provides no basis for distinguishing circumstances where the speech is constitutionally protected from those where the speech does not warrant protection under the First Amendment,” the Court concluded.

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Related legal case

State v. Boettger



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