In #Counterman, #SupremeCourt had to balance the risk of chilling useful speech against the risk of letting people terrify & intimidate others w/o consequences
On the one hand, the lack of a subjective requirement for a true threat might chill speech that was rhetorical or joking or art bc speakers could not be sure what a court would conclude about reasonableness and stay silent
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On the other, too high a standard of subjective intent for a true threat unprotected by the Free Speech Clause would allow speakers to terrify their targets and claim lack of sufficent proof that they intended or knew that speech was threatening.
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The Court decided on recklessness.
What exactly does recklessness entail? According to #Counterman, "in the threats context, it means the speaker is aware that others could regard his statements as threatening violence and delivers them anyway."
Kagan notes: "reckless defendants have done more than make a bad mistake. They have consciously accpeted a substantial risk of inflicting serious harm."
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