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Attorney General Josh Stein Calls on Supreme Court to Allow States to Prohibit Threats of Violence

For Immediate Release:
Friday, March 31, 2023

Contact: Nazneen Ahmed
919-716-0060

(RALEIGH) Attorney General Josh Stein today urged the U.S. Supreme Court to support states’ efforts to protect their residents from violent threats. In an amicus brief, Attorney General Stein and a bipartisan coalition of 26 attorneys general argue the First Amendment does not protect statements that an objectively reasonable person would understand as being serious threats to inflict violence.

“Violent crime is on the rise, and we need every tool at our disposal to protect people from harm,” said Attorney General Josh Stein. “I urge the Supreme Court not to make it harder for states to keep their residents safe from threats of violence.”

The brief was filed in support of Colorado in Counterman v. Colorado. 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 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 criminal cases to prove that he intended to frighten the victim (a subjective standard), but Colorado argues a jury can look to context to determine whether the threat was a so-called “true threat” (an objective standard).

Under the First Amendment, many states have used an objective standard to regulate threats, both civilly and criminally. It has been important to states’ ability to protect students from school shooting threats, abuse victims from domestic violence threats, and people of all backgrounds from hate crime threats.

Additionally, 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. Attorney General Stein argues that if the First Amendment is interpreted to always require a subjective standard, it could jeopardize a range of important state laws.

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

A copy of the brief is available here.

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