“True threats,” according to the Court, “are ‘serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful violence.'” These threats have long been held to “lie outside the bounds of the First Amendment’s protection.”
Justice Kagan authored the opinion of the Court, which the Chief Justice and Justices Alito, Kavanaugh, and Jackson joined. The Court held the First Amendment requires the prosecution to establish “that the defendant had some subjective understanding of his statements’ threatening nature.” The Court cited its precedent requiring that prosecution of defamation requires a showing that “the speaker acted with ‘knowledge that it was false or with reckless disregard of whether it was false or not'” when the target is a public figure.
The Court declined to apply the higher purposeful or knowing standards employed in the prosecution of incitement. The Court reasoned a higher standard is needed for incitement because “strong protests against the government and prevailing social order” are “commonly a hair’s-breadth away from political ‘advocacy'” of lawlessness.
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