Court Should Consider Children When Deciding True Threat Test

The New England Patriots had just won the Super Bowl. A Kansas City high school student, angry his team didn’t win the game, took to Snapchat to express his hatred of the Patriots and their fans, threatening to kill some of his classmates.

While trolling an online forum to rate people’s attractiveness, another teenager in Texas said to the other chat participants, “I think I’ma SHOOT UP A KINDERGARTEN.” Taken completely out of context, the teenager’s words so alarmed a total stranger that the adult contacted Texas police.

The teens in both cases were arrested and charged with felonies, although neither one intended to actually convey or carry out a threat.

Neither of these statements was prudent, but no one should be surprised when teenagers say things they shouldn’t. These cases represent just two examples, albeit extreme ones, of young people making ill-advised statements online—something that happens every day.

A case before the US Supreme Court, Counterman v. Colorado, will have significant legal ramifications for children across the country, nearly all of whom engage in some type of online discourse.

The case involves a man, Billy Raymond Counterman, who admits he was mentally ill, “annoying,” and “weird,” when he sent repeated Facebook messages to a local musician he didn’t know. The woman found the messages to be threatening, and Counterman was prosecuted based on a state law that prohibits “mak[ing] any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress.”

At issue in the case is whether, to fall under the “true threat” exception to the First Amendment’s free speech guarantee, a speaker’s statement should be evaluated under an objective-only test, or, as we argue, a “totality of the circumstances” test that accounts for the speaker’s subjective intent.

The Colorado law under which Counterman was prosecuted requires merely an objective-only test, evaluating whether the recipient reasonably felt threatened. The speaker’s subjective intent is irrelevant under the Colorado law and many similar laws throughout the country.

The US Supreme Court recently heard oral argument in the case. Between moments of levity brought by the justices with remarks about rapper Eminem, and counsel recalling how his mother threatened to kill him for boyhood mischief, the court grappled with an important issue that will have significant ramifications for children. We were pleased they particularly noted the statute’s potential ramifications in today’s digital age.

Several justices expressed concern about the Colorado statute and its lack of a mens rea requirement. But adopting a “recklessness” standard as suggested by Justices Samuel Alito and Brett Kavanaugh falls short of what’s needed to protect children who could be prosecuted for online statements.

Children can be reckless. The court should adopt a more stringent mens rea requirement to avoid criminalizing online “threats” that children don’t intend or have the means to carry out.

Although Counterman is an adult, his case could be devastating to children across America who may soon find themselves in a courtroom having to answer for a reckless statement they made online. As recently as 2019, approximately 53,000 children were prosecuted in the adult criminal justice system.

Although a juvenile justice system exists in every state, prosecutors charge and convict juveniles in the adult system based on state statutes that allow children as young as eight years old to be tried as adults. Some state statutes require prosecutors to charge children as adults in certain circumstances. In three states—Georgia, Texas, and Wisconsin—17-year-olds must be tried as adults because they are statutorily excluded from juvenile court jurisdiction.

Because of these state laws, every criminal case before the Supreme Court affects children, even if the criminal defendant in the case is over 18. But few cases are as relevant to children as the Counterman case and its analysis of online speech.

As we ask in our amicus brief to the court, “How often do parents tell their children to be careful about what they say online?” Our response: “Likely every day. Yet few parents would envision their child being prosecuted or imprisoned for a hastily crafted, tactless social media post.”

When young people are prosecuted in the criminal justice system, their lives are changed forever. In the case of the teenager in Texas, the judge set his bail at $500,000. He spent four months in jail, where he was physically and sexually abused and put in solitary confinement for his own safety. He awaited trial for five years before prosecutors finally offered him a deal dismissing the felony charges in exchange for a guilty plea to an unrelated misdemeanor charge.

In so many cases involving young people making online “threats,” the child speaker has no intention or ability to follow through on the purported “threats.” Reason and science tell us that children’s brains are not fully developed, causing them to make impulsive statements and decisions without appreciating the consequences.

This is why the court must adopt a test that requires consideration of the subjective intent of the speaker—to capture relevant circumstances like the cognitive immaturity of children. If this were your child, would you want the full weight of the criminal justice system to come down on them because in a rash moment they made a crude statement online?

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Emily Virgin is an attorney and serves as the Director of Advocacy & Government Relations at Human Rights for Kids.

Adam Pollet is a litigation partner at Eversheds Sutherland.

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