The Supreme Court May Not Have Doomed the Right to Protest After All
At the same time, the justices also held that a “mental state of recklessness” would be enough to meet that threshold. “[Colorado] must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” Justice Elena Kagan wrote for the 7–2 majority. “The State need not prove any more demanding form of subjective intent to threaten another.” Since Colorado prosecuted him under a different standard, the court ruled that it had violated the First Amendment.
Sending threatening Facebook messages does not appear to have much in common with organizing protests against police violence, at first glance. But both cases involve questions of how far the First Amendment goes to protect speech that is, shall we say, adjacent to the possibility of violence. In Counterman, the justices referred to Claiborne multiple times. Kagan, writing for the majority, cited Claiborne alongside other cases to note that the First Amendment “precludes punishment, whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”
She also noted that, in incitement cases, the court has often recognized that “incitement to disorder is commonly a hair’s-breadth away from political ‘advocacy’—and particularly from strong protests against the government and prevailing social order,” again pointing to Claiborne. The court’s emphasis on an intent requirement in First Amendment cases would appear to doom the officer’s lawsuit against Mckesson, which hinges entirely on the lower standard of negligence.