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AG Nessel Joins Bipartisan Coalition Calling on U.S. Supreme Court to Allow States to Prohibit Threats of Violence

LANSING — Michigan Attorney General Dana Nessel joined a bipartisan coalition of 16 states in filing an amicus brief with the U.S. Supreme Court supporting states’ efforts to protect their residents from violent threats.

The brief was filed in support of Colorado in Counterman v. Colorado, which is pending with the Supreme Court. 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 the course of 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; whereas, Colorado argues a jury can look to context to determine whether the threat was a so-called “true threat.”

“Threats of violence can have a chilling effect on those who receive them,” Nessel said. “Messages like those sent by the defendant in this case can have no other purpose than to terrorize the recipient. Speech that expresses a serious intent to do harm to another person is not protected by the First Amendment. I stand firmly with my colleagues in asking the Supreme Court to allow states to protect their residents from the harm of threats of violence.”

In the brief, AG Nessel and the coalition argue the First Amendment does not protect statements that an objectively reasonable person would understand as being serious threats to inflict violence. Since the First Amendment was ratified, many states have used an objective standard to regulate threats, both civilly and criminally. For example, this objective standard has been important to states’ ability to protect students from threatened school shootings, abuse victims from threatened domestic violence, and individuals of all backgrounds from threats of hate crimes.

Additionally, AG Nessel and the coalition explain states sometimes 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. The coalition argues that if the First Amendment is interpreted to always require a subjective standard, it could jeopardize a range of important state laws.

Joining AG Nessel in submitting the brief were the attorneys general of Arizona, the District of Columbia, Hawaii, Illinois, Iowa, Massachusetts, Mississippi, Nevada, New Jersey, North Carolina, Ohio, South Dakota, Tennessee, and Vermont, as well as Connecticut’s chief state’s attorney.

A copy of the brief is available here.


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