Kansas v. Boettger

1 Cite as: 591 U. S. ____ (2020)
T
HOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
KANSAS v. TIMOTHY C. BOETTGER
KANSAS v. RYAN ROBERT JOHNSON
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF KANSAS
No. 19–1051. Decided June 22, 2020
The motion of respondents for leave to proceed in forma
pauperis is granted. The petition for a writ of certiorari is
denied.
J
USTICE THOMAS, dissenting from the denial of certiorari.
Kansas asks us to decide whether the First Amendment
prohibits States from criminalizing threats to “[c]ommit vi-
olence . . . in reckless disregard of the risk of causing . . .
fear.” Kan. Stat. Ann. §21–5415(a)(1) (2018). Respondent
Timothy Boettger was convicted for telling the son of a po-
lice detective that he “‘was going to end up finding [his] dad
in a ditch.’” ___ Kan. ___, ___, 450 P. 3d 805, 807 (2019).
Respondent Ryan Johnson was separately convicted for
telling his mother that he “‘wish[ed] [she] would die,’” that
he would “‘help [her] get there,’” and that he was “‘going to
f***ing kill [her] a***.’” ___ Kan. ___, ___, 450 P. 3d 790,
792 (2019). The Kansas Supreme Court overturned both
convictions and held that reckless threats are protected by
the First Amendment, relying on Virginia v. Black, 538
U. S. 343 (2003).
In my view, the Constitution likely permits States to
criminalize threats even in the absence of any intent to in-
timidate. See Elonis v. United States, 575 U. S. 723, 760–
767 (2015) (dissenting opinion). It appears to follow that
threats of violence made in reckless disregard of causing
fear may be prohibited. The Kansas Supreme Court
reached the opposite conclusion by overreading our decision
in Black, which did not answer the question presented here.

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HOMAS, J., dissenting
Other courts looking to Black, however, have upheld simi-
lar statutes. State v. Taupier, 330 Conn. 149, 193 A. 3d 1
(2018); Major v. State, 301 Ga. 147, 800 S. E. 2d 348 (2017).
I would grant the petition for certiorari to resolve the split
on this important question.
I
The Fourteenth Amendment provides that “[n]o State
shall make or enforce any law which shall abridge the priv-
ileges or immunities of citizens of the United States.” §1.
As I have previously explained, “[t]he evidence overwhelm-
ingly demonstrates that the privileges and immunities of
such citizens included individual rights enumerated in the
Constitution.” McDonald v. Chicago, 561 U. S. 742, 823
(2010) (opinion concurring in part and concurring in judg-
ment). One of those rights is “the freedom of speech” in the
First Amendment. See, e.g., Cong. Globe, 39th Cong., 1st
Sess., 2765 (1866) (speech of Sen. Howard).
It does not appear that the ratifiers of the First or Four-
teenth Amendments understood the freedom of speech to
protect reckless threats. In 1754, Parliament passed a stat-
ute making it a crime to “knowingly send any Letter with-
out any Name subscribed thereto, or signed with a fictitious
Name . . . threatening to kill or murder any of his Majesty’s
Subject or Subjects, or to burn their [property], though no
Money or Venison, or other valuable Thing shall be de-
manded.” 27 Geo. 2, ch. 15. English courts interpreted this
statute to require what is known today as general intent—
“that is, that the defendant posses[s] knowledge with re-
spect to the actus reus of the crime.” Carter v. United
States, 530 U. S. 255, 268 (2000). As the trial court in-
structed the jurors in one leading case, “if they were of the
opinion that” the “terms of the letter conveyed an actual
threat to kill or murder . . . and that the prisoner knew the
contents of it, they ought to find him guilty.” King v. Gird-
wood, 1 Leach 142, 143, 168 Eng. Rep. 173 (1776). Only “if

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HOMAS, J., dissenting
they thought [the defendant] did not know the contents, or
that the words might import any thing less than to kill or
murder” should they acquit. Ibid. The Court of Crown ap-
proved this instruction. Ibid., 168 Eng. Rep., at 174; see
also Rex v. Boucher, 4 Car. & P. 562, 563, 172 Eng. Rep.
826, 827 (N. P. 1831).
More than a dozen States and Territories enacted “cop-
ies” of this statute between the founding and Reconstruc-
tion. Elonis, supra, at 761 (T
HOMAS, J., dissenting). New
Jersey, for example, made it a crime to “knowingly send or
deliver any letter or writing, with or without a name sub-
scribed thereto, or signed with a fictitious name, . . . threat-
ening to maim, wound, kill or murder any person, or to burn
his or her [property], though no money, goods or chattels, or
other valuable thing shall be demanded.” 1796 N. J. Laws
§57, p. 108; see also Colo. Rev. Stat., ch. 22, §112 (1868);
1864 Mont. Laws p. 205; 1864 Idaho Sess. Laws ch. 8, §116;
1860 Pa. Laws p. 390; 1859 Neb. Laws p. 64; 1850 Cal.
Stats. ch. 99, §110; Mo. Rev. Stat. ch. 47, Art. 7, §16 (1845);
1839 Iowa Acts p. 161; 1832 Fla. Laws §34, pp. 68–69; 1827
Ill. Laws p. 145; 1816 Mich. Pub. Acts p. 24; 1816 Ga. Laws
p. 178. The founding and Reconstruction generations would
have understood these statutes to require a mental state of
general intent. Girdwood and other English decisions were
familiar to American lawyers. See, e.g., 7 N. Dane, A Gen-
eral Abridgement and Digest of American Law 31–32
(1824). And “where English statutes . . . have been adopted
into our own legislation; the known and settled construction
of those statutes by courts of law, has been considered as
silently incorporated into the acts, or has been received
with all the weight of authority.” Pennock v. Dialogue, 2
Pet. 1, 18 (1829); see also Elonis, supra, at 760–763
(T
HOMAS, J., dissenting). The prevalence of statutes from
the founding through Reconstruction that did not require
intent to intimidate provides strong evidence of the mean-
ing of the freedom of speech protected by the Fourteenth

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HOMAS, J., dissenting
Amendment.
This evidence is reinforced by the fact that many of these
States also guaranteed the freedom of speech in their con-
stitutions. See, e.g., Fla. Const., Art. I, §5 (1838); Mich.
Const., Art. I, §7 (1835); Mo. Const., Art. XIII, §16 (1820);
Ill. Const., Art. VIII, §22 (1818); N. J. Const., Art. I, §5
(1844); Pa. Const., Art. IX, §7 (1790). If statutes criminal-
izing reckless threats violated the freedom of speech, one
would expect these States not to have such laws, but many
of them did. At the very least, one would expect state courts
to hold such laws unconstitutional, but it appears that none
did. Near the end of the 19th century, one court observed
that these laws had “never been supposed to be obnoxious
to freedom of speech.” State v. McCabe, 135 Mo. 450, 459,
37 S. W. 123, 126 (1896).
Finally, none of this Court’s precedents have held that
the First Amendment requires States to include intent to
intimidate as an element in criminal threat statutes. The
Court’s decision in Watts v. United States, 394 U. S. 705
(1969) (per curiam), “expressly declined to address the men-
tal state required under the First Amendment for a ‘true
threat.’” Elonis, 575 U. S., at 765 (T
HOMAS, J., dissenting).
The state statute in Black required “intent to intimidate,”
Va. Code Ann. §18.2–423 (1996), so the Court did not decide
whether such intent was required to make the law comport
with the First Amendment, Elonis, supra, at 765 (T
HOMAS,
J., dissenting).
II
The Kansas Supreme Court, however, concluded that
Black prohibited the State from criminalizing reckless
threats. In reaching that conclusion, the court created a
split with the Supreme Courts of Connecticut and Georgia.
We should resolve this conflict and provide clear guidance
to the lower courts.
In Black, a majority of the Court stated in passing that

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HOMAS, J., dissenting
“ ‘[t]rue threats’ encompass those statements where the
speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence to a particular
individual or group of individuals.” 538 U. S., at 359. The
majority also stated in passing that “[t]he speaker need not
actually intend to carry out the threat.” Id., at 359–360.
Four Members of the majority added that “[t]he First
Amendment does not permit” state law to “ignor[e] all of the
contextual factors that are necessary to decide whether [an
act] is intended to intimidate.” Id., at 367 (plurality opin-
ion).
State courts of last resort have divided over the meaning
of this language. The Kansas Supreme Court held the
State’s reckless threat statute unconstitutional, relying on
Black’s statement that “‘[i]ntimidation in the constitution-
ally proscribable sense of the word is a type of true threat,
where a speaker directs a threat to a person or a group of
persons with the intent of placing the victim in fear of bod-
ily harm or death.’” ___ Kan., at ___, 450 P. 3d, at 818
(quoting Black, supra, at 360; emphasis deleted). But two
other state courts of last resort have read Black differently.
The Supreme Court of Connecticut found that “nothing in
Black itself suggests that the [C]ourt intended to overrule
the preexisting consensus among the federal circuit courts
of appeals that threatening speech may be punished under
the [F]irst [A]mendment when a reasonable person would
interpret the speech as a serious threat.” Taupier, 330
Conn., at 173, 193 A. 3d, at 18–19. And the Supreme Court
of Georgia likewise read Black to allow States to prohibit
threats made with reckless disregard. Major, 301 Ga., at
151, 800 S. E. 2d, at 352.
This split regarding the mental state required by the
First Amendment for these offenses will only deepen with
time. Sixteen States and the District of Columbia filed an
amicus brief representing that numerous statutes would be
subject to challenge under the reasoning of the Supreme

6 KANSAS v. BOETTGER
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HOMAS, J., dissenting
Court of Kansas. Brief for Virginia et al. as Amici Curiae
11–12. If state high courts hold even a fraction of these
statutes unconstitutional, we will have no choice but to in-
tervene. I would do so now to address the problem caused
by our language in Black.
* * *
The decisions in these cases—and the split among state
courts of last resort—resulted from the lack of clarity in
Black. Because the Court should squarely decide whether
the Constitution permits States to criminalize threats of vi-
olence made in reckless disregard of causing fear, I respect-
fully dissent from the denial of certiorari.