First Amendment law professors' amicus brief referenced in Justice Sotomayor's concurrence

Client(s) Law professors

On behalf of a group of First Amendment scholars, Jones Day filed an amicus brief in Counterman v. Colorado, a case in which the Supreme Court considered the mental state required before a defendant can be convicted for making a "true threat." The law professors argued that stalking cases require a different First Amendment analysis from "true threats" cases. The professors explained that laws that simply prohibit threats forbid speech because of its communicative content alone. But laws that prohibit stalking are different. They prohibit a pattern of repeated conduct that is directed to another and that, because of the manner in which it occurs, reasonably causes its target serious emotional harm. The conduct may include speech, and the making of threats, but it does not have to. For all of these reasons, there is less risk that stalking statutes will be applied in a way that threatens First Amendment values.

While the majority held that a recklessness standard applies in threats prosecutions, Justice Sotomayor wrote in a concurrence, joined in relevant part by Justice Gorsuch, that she would not have decided what standard applied in "true threats" cases. She noted that Counterman's case involved stalking, and that it therefore did not trigger the same First Amendment concerns as standalone threats. Opinion of Sotomayor, J. at 3–4. Describing the high stakes associated with stalking and harassment, Justice Sotomayor cited the law professors' amicus brief. Id. at 7.