State v. Boettger ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 115,387
STATE OF KANSAS,
Appellee,
v.
TIMOTHY C. BOETTGER,
Appellant.
SYLLABUS BY THE COURT
1.
The freedom of speech referred to in the First Amendment to the United States
Constitution does not include a freedom to disregard restrictions on certain well-defined
and narrowly limited categories of speech that the government may regulate and, in some
circumstances, punish. A true threat falls within one category of speech the government
may punish.
2.
True 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. The speaker need not intend to commit violence.
3.
The portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a conviction if a
threat of violence is made in reckless disregard for causing fear is unconstitutionally
overbroad because it punishes conduct that may be constitutionally protected under some
circumstances.
1
Review of the judgment of the Court of Appeals in an unpublished opinion filed June 23, 2017.
Appeal from the Douglas District Court; RICHARD M. SMITH, judge. Opinion filed October 25, 2019.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed.
Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause and was on the brief
for appellant.
Kate Duncan Butler, assistant district attorney, argued the cause, and Charles E. Branson, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.: The First Amendment to the United States Constitution prohibits the
government from abridging our freedom of speech. But that freedom of speech is not
without limits. The United States Supreme Court has recognized certain well-defined and
narrowly limited categories of speech that the government may restrict and even
criminally punish. One such category is that of a true threat. This appeal raises questions
about what constitutes a true threat and, more specifically, whether the only way to make
a true threat is to actually intend to cause fear. Timothy C. Boettger raises these questions
by challenging the constitutionality of a provision in the Kansas criminal threat statute,
K.S.A. 2018 Supp. 21-5415(a)(1), that allows for a criminal conviction if a person makes
a threat in reckless disregard of causing fear. We hold this reckless disregard provision is
unconstitutionally overbroad, and we reverse Boettger's conviction because it is based
solely on that unconstitutional provision.
2
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Boettger of one count of criminal threat for statements he made
to Cody Bonham. Boettger frequented the convenience store where Bonham worked and
often spoke with Bonham and another employee, Neil Iles.
On the night of the incident, Boettger came into the store and bought a cup of
coffee. He spoke to Iles for a few minutes near the cash register. He told Iles he was upset
because he had found his daughter's dog in a ditch. The dog had died from a gunshot
wound, and Boettger was angry the sheriff's department had not investigated. Iles
recalled Boettger saying "these people . . . might find themselves dead in a ditch
somewhere." Iles thought Boettger was referring to the shooter. Based on past
conversations, Iles knew Boettger often had an intense way of speaking and a tendency to
get upset. Iles thought Boettger was no more upset than he had been in other situations,
and Iles perceived Boettger's reaction as a general complaint about the sheriff's
department's inaction.
Boettger walked out of the store but soon came back. At that time, Bonham was
stocking a shelf in the aisle nearest to the door. Boettger and Bonham were well-
acquainted, having visited between 600 and 800 times over the course of the previous
four years. Boettger also knew Bonham's family. He had dated Bonham's aunt and he had
known Bonham's father since high school. Boettger knew Bonham's father was a
detective in the Douglas County Sheriff's Office.
Like Iles, Bonham knew Boettger had an intense way of speaking about certain
subjects. But on this occasion, Bonham felt Boettger was unusually intense as he told
Bonham about being upset because of what happened to his daughter's dog and the
sheriff's department's failure to investigate. Boettger clenched his fists, and he was visibly
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shaking. Bonham further testified that Boettger spoke as he approached, saying, "You're
the man I'm looking for." According to Bonham, Boettger continued by saying "he had
some friends up in the Paseo area in Kansas City that don't mess around, and that I was
going to end up finding my dad in a ditch." Boettger ended the conversation by saying,
"'You remember that.'" Iles saw Boettger speaking with Bonham but could not hear their
conversation.
After Boettger left, Iles noticed that Bonham appeared to be distraught. Bonham
relayed what happened and called his father to tell him about the incident. Bonham
drafted an email to record the details of his conversation with Boettger and called the
police to report the incident. At trial, Boettger admitted he knew Bonham's father was a
member of the sheriff's department but denied threatening to harm him. He asserted
Bonham was mistaken about what he said. Boettger denied mentioning friends from the
Paseo area, saying instead that he had referred to friends in North Kansas City. Boettger
generally claimed he had no intent to threaten anyone and did not mean Bonham or his
family any harm. He felt he was on good terms with the family based on his past
interactions and relationship with Bonham's father and aunt.
The district court instructed the jury a conviction required finding that Boettger
"threatened to commit violence and communicated the threat with reckless disregard of
the risk of causing fear in Cody Bonham." The jury convicted Boettger of one count of
reckless criminal threat under K.S.A. 2016 Supp. 21-5415(a)(1). Boettger timely
appealed, raising five arguments. The Court of Appeals rejected his arguments and
affirmed his conviction and sentence. See State v. Boettger, No. 115,387, 2017 WL
2709790, at *1 (Kan. App. 2017) (unpublished opinion).
Boettger timely petitioned for review, raising the same five arguments he had
made before the Court of Appeals. This court granted review but only on three of the
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issues: (1) whether the reckless form of criminal threat under K.S.A. 2018 Supp. 21-
5415(a)(1) is unconstitutionally overbroad; (2) whether the reckless threat provision is
unconstitutionally vague; and (3) whether the jury instruction on the elements of reckless
criminal threat was clearly erroneous.
ANALYSIS
The three issues before this court all relate to Kansas' criminal threat statute,
K.S.A. 2018 Supp. 21-5415(a). There, the Legislature defined "criminal threat" to include
a threat to "(1) [c]ommit violence communicated with intent to place another in fear . . .
or in reckless disregard of the risk of causing such fear." Boettger's arguments are
specific to the last portion of this definition—a threat made in reckless disregard of the
risk of causing fear.
In his first two arguments, Boettger asserts the reckless criminal threat provision is
both unconstitutionally overbroad and vague. Issues about the constitutionality of a
statute present questions of law over which this court has unlimited review. State v.
Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000) (overbreadth and vagueness). Boettger
carries the burden to establish the statute is unconstitutional. See State v. Williams, 299
Kan. 911, 920, 329 P.3d 400 (2014).
Before addressing Boettger's arguments, we must consider whether he has
preserved his constitutional challenges for appellate review. Generally, a party cannot
raise an issue for the first time on appeal, and Boettger did not present the arguments to
the district court. See Williams, 299 Kan. at 929. Even so, Boettger argued to the Court of
Appeals that both his overbreadth and vagueness challenges fell within recognized
exceptions to the preservation rule. He specifically pointed to exceptions allowing a party
to raise a constitutional argument for the first time on appeal if it presents a question of
5
law or if consideration of it is necessary to prevent the denial of a fundamental right. See
State v. Herbel, 296 Kan. 1101, 1116, 299 P.3d 292 (2013). The Court of Appeals
accepted those justifications. See Boettger, 2017 WL 2709790, at *2, 5. It also concluded
Boettger had standing to raise the argument that K.S.A. 2018 Supp. 21-5415(a)(1) makes
unlawful constitutionally protected conduct even though he has not asserted that he
himself was engaged in a protected activity. See Williams, 299 Kan. at 919 (holding a
litigant has standing to assert overbreadth challenge that seeks to protect First
Amendment rights of third parties).
The State did not cross-petition for review to ask us to consider either of these
holdings. When a party does not cross-petition for review on an issue decided adversely
to that party by the Court of Appeals, we deem it as settled on review. Ullery v. Othick,
304 Kan. 405, 415, 372 P.3d 1135 (2016) (Court of Appeals holding not included in
petition or cross-petition for review not before this court); see Supreme Court Rule 8.03
(h)(1) (2018 Kan. S. Ct. R. 56).
We, therefore, consider his constitutional challenges to the statute.
ISSUE 1: K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad.
Boettger first argues the reckless form of criminal threat criminalizes speech
protected under the First Amendment to the United States Constitution and is therefore
overbroad. "[A]n overbroad statute makes conduct punishable which under some
circumstances is constitutionally protected." Whitesell, 270 Kan. 259, Syl. ¶ 6. A party
arguing a statute is overbroad must show "(1) the protected activity is a significant part of
the law's target, and (2) there exists no satisfactory method of severing" constitutional
applications of the law from unconstitutional ones. 270 Kan. 259, Syl. ¶ 6; see Dissmeyer
v. State, 292 Kan. 37, 40-41, 249 P.3d 444 (2011); see also, e.g., Houston v. Hill, 482
6
U.S. 451, 459, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987) (A statute "that make[s]
unlawful a substantial amount of constitutionally protected conduct may be held facially
invalid".); Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S. Ct. 2294, 33 L. Ed. 2d
222 (1972) (A statute may be overbroad "if in its reach it prohibits constitutionally
protected conduct.").
To determine whether the reckless disregard provision is overbroad, we must
consider the scope of speech protected by the First Amendment.
1.1 First Amendment protections
The First Amendment to the United States Constitution provides: "Congress shall
make no law . . . abridging the freedom of speech." U.S. Const. amend. I. This free
speech protection extends to state laws through the Equal Protection Clause of the
Fourteenth Amendment. See Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95-96, 92
S. Ct. 2286, 33 L. Ed. 2d 212 (1972). "If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit expression of an idea simply
because society itself finds the idea itself offensive or disagreeable." Texas v. Johnson,
491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989).
"From 1791 to the present, however, our society, like other free but civilized
societies, has permitted restrictions upon the content of speech in a few limited areas."
R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S. Ct. 2538, 120 L. Ed. 2d 305(1992). These limited classes consist of "well-defined and narrowly limited" speech or
expressive conduct that has "no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality." Chaplinsky v. New
Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). Classes of speech
7
the government may punish include obscenity, defamation, fighting words, incitement to
imminent breach of the peace, and "true threats." See Virginia v. Black, 538 U.S. 343,
359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003); R.A.V., 505 U.S. at 383. The United
States Supreme Court has "recognized that 'the freedom of speech' referred to by the First
Amendment does not include a freedom to disregard these traditional limitations." 505
U.S. at 383.
Even though governmental restrictions on these categories of speech may be
constitutional, they can also go too far and result in an infringement of First Amendment
rights. The United States Supreme Court dealt with such a situation in R.A.V., 505 U.S.
377.
R.A.V., a minor, was convicted of violating St. Paul, Minnesota's Bias-Motivated
Crime Ordinance. The ordinance prohibited displaying a symbol if one knows or has
reason to know it "arouses anger, alarm or resentment in others on the basis of race,
color, creed, religion or gender." The United States Supreme Court accepted the
Minnesota Supreme Court's determination that the ordinance applied only to fighting
words, as defined in Chaplinsky, 315 U.S. at 572 ("Fighting words" are "those which by
their very utterance inflict injury or tend to incite an immediate breach of the peace.").
And Chaplinsky held that the category of fighting words is one classification that "'is not
in any proper sense communication of information or opinion safeguarded by the
Constitution.'" 315 U.S. at 572 (quoting Cantwell v. State of Connecticut, 310 U.S. 296,
310, 60 S. Ct. 900, 84 L. Ed. 1213 [1940]). Even so, the Court held the ordinance
violated the First Amendment because it regulated the content of the speech—that is, it
prohibited speech "solely on the basis of the subjects the speech addresses." R.A.V., 505
U.S. at 381.
8
The R.A.V. Court recognized that some United States Supreme Court decisions
could be read as holding that fighting words were categorically unprotected by the First
Amendment. 505 U.S. at 383; see, e.g., Chaplinsky, 315 U.S. at 571-72 ("There are
certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem."). But
the Court noted that these statements must be read in context and, in context, they were
meant only as a "shorthand." 505 U.S. at 383. That shorthand, the Court explained,
should not be taken to mean that all prohibitions against fighting words, obscenity, or
libel are constitutional because the Court's holding must be limited to the specific
circumstances of a case. Outside those circumstances, a restriction targeting one of those
categories of speech may be unconstitutional and will be if it discriminates based on
content. Thus, for example, "the government may proscribe libel; but it may not make the
further content discrimination of proscribing only libel critical of the government." 505
U.S. at 383-84. The R.A.V. Court recognized that "the prohibition against content
discrimination that we assert the First Amendment requires is not absolute," and it then
discussed several exceptions. 505 U.S. at 387-90. Ultimately, the discrimination does not
violate the Constitution if "the nature of the content discrimination is such that there is no
realistic possibility that official suppression of ideas is afoot." 505 U.S. at 390.
1.2 True-threat doctrine
The United States Supreme Court has explained that the same tension can arise
when the government attempts to criminalize "true threats." In Watts v. United States,
394 U.S. 705, 707, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969), the United States Supreme
Court thus held that "a statute such as this one, which makes criminal a form of pure
speech, must be interpreted with the commands of the First Amendment clearly in mind.
What is a threat must be distinguished from what is constitutionally protected speech." In
that case, an 18-year-old protesting at a public rally after having received his draft
9
classification was charged with knowingly and willfully threatening the President of the
United States. The young man had said, "'If they ever make me carry a rifle the first man
I want to get in my sights is L.B.J.'" 394 U.S. at 706. The United States Supreme Court
explained the statement was political hyperbole and not a "true 'threat.'" 394 U.S. at 708.
The true-threat doctrine mentioned in Watts is the focus of this case. The United
States Supreme Court more fully explored the doctrine in Black, 538 U.S. 343. There, the
Court again used the term "true threat" to differentiate between protected and unprotected
speech, defining the term in a sentence that has become the focus of much of Boettger's
and the State's arguments. It stated: "'True 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
speaker need not intend to commit violence. "Rather, a prohibition on true threats
'protect[s] individuals from the fear of violence' and 'from the disruption that fear
engenders,' in addition to protecting people 'from the possibility that the threatened
violence will occur.'" 538 U.S. at 360.
1.3 Boettger's contentions—matters of first impression
Boettger essentially contends that under Virginia v. Black's definition of "true
threat" set out above, he can be found guilty of making a true threat—one the First
Amendment does not protect—only if he possessed the subjective intent to both (1) utter
threatening words and (2) cause another to fear the possibility of violence. He further
argues K.S.A. 2018 Supp. 21-5415(a)(1) is overbroad because it encompasses more than
a true threat and could punish someone for uttering distasteful words that are not a true
threat by punishing someone who speaks "in reckless disregard of the risk of causing
such fear" of violence.
10
This court has never considered whether a conviction for recklessly making a
threat can be a true threat or instead violates the First Amendment. Although not asking
the question in this way, in 2001 (two years before the decision in Black), a panel of the
Court of Appeals rejected arguments that a previous version of the criminal threat statute
violated the First Amendment because it was overbroad and vague. State v. Cope, 29
Kan. App. 2d 481, 29 P.3d 974 (2001), rev'd on other grounds 273 Kan. 642, 44 P.3d
1224 (2002). The statute as it read in 2001 allowed a conviction based on someone
making a threat in reckless disregard of causing an evacuation of a building, place of
assembly, or facility of transportation. See 29 Kan. App. 2d at 483-84.
The Cope panel reached its ruling, in part, by relying on State v. Bourke, 237 Neb.
121, 122, 464 N.W.2d 805 (1991), disapproved on other grounds by State v. Warner, 290
Neb. 954, 863 N.W.2d 196 (2015). In turn, the State now cites Bourke in support of its
argument that Kansas' current statute is constitutional. But Bourke provides limited
guidance.
There, the Nebraska Supreme Court considered the constitutionality of a statute
very similar to Kansas' 2001 version of the criminal threat statute. A criminal defendant
argued at trial that the reckless disregard provision was both unconstitutionally vague and
overbroad. The Nebraska trial court found the reckless disregard provision of the
Nebraska statute unconstitutionally vague. On appeal from that ruling the question before
the Nebraska Supreme Court was thus vagueness—not overbreadth. See 237 Neb. at 122.
As a result, the Nebraska decision did not support that portion of Cope dealing with the
overbreadth issue, only the panel's vagueness analysis. The Cope panel also cited several
Kansas cases dealing generally with an issue about overbreadth. But the precedential
value of these cases was limited because none of them dealt with the criminal threat
statute or discussed the true-threat doctrine. The State attempts to mitigate this by
pointing out that post-Black the Nebraska Supreme Court reaffirmed Bourke. See State v.
11
Nelson, 274 Neb. 304, 311, 739 N.W.2d 199 (2007). Again, however, the Nebraska
Supreme Court in Bourke considered an issue related to whether the statute was vague,
not whether it was overbroad. And it did not discuss the true-threat doctrine. As a result,
these authorities provide no guidance on whether a recklessly made statement of violence
may constitutionally constitute a true threat. And neither does Cope. We thus find no
Kansas authority deciding whether someone who utters a threat of violence in reckless
disregard of causing fear has uttered a true threat.
Nor has the United States Supreme Court explicitly decided the question.
According to Justice Thomas, the lack of a decision by that Court on the issue "throws
everyone from appellate judges to everyday Facebook users into a state of uncertainty."
Elonis v. United States, 575 U.S. __, 135 S. Ct. 2001, 2018, 192 L. Ed. 2d 1 (2015)
(Thomas, J., dissenting). Indeed, as we will detail, post-Black courts determining the type
of intent necessary to qualify as a true threat have reached differing results. A more
detailed discussion of the Virginia v. Black decision places those differing views in
context.
1.4 Virginia v. Black
Barry Black and others were separately convicted of violating a Virginia statute
that made it illegal to burn a cross "with the intent of intimidating any person or group of
persons." Va. Code Ann. § 18.2-423 (1996). The statute added that "[a]ny such burning
of a cross shall be prima facie evidence of an intent to intimidate a person or group of
persons." Va. Code Ann. § 18.2-423. The Virginia Supreme Court held the statute was
facially unconstitutional for two reasons: (1) It "selectively chooses only cross burning
because of its distinctive message" and was "analytically indistinguishable from the
ordinance found unconstitutional in R.A.V., [505 U.S. 377]", and (2) the prima facie
evidence provision of the statute "enhanced [the] probability of prosecution" and was
12
thus overbroad because it "chills the expression of protected speech." Black v.
Commonwealth of Virginia, 262 Va. 764, 774, 777, 553 S.E.2d 738 (2001), aff'd in part,
vacated in part 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).
The case was appealed and reached the United States Supreme Court, where the
nine justices wrote five opinions. A majority of the Court—formed through multiple
opinions—disagreed with the Virginia Supreme Court's first holding that the statute was
indistinguishable from the ordinance found unconstitutional in R.A.V. A plurality of the
Court—consisting of Justice O'Connor, who authored the opinion, joined by Chief Justice
Rehnquist, Justice Stevens, and Justice Breyer—reviewed "cross burning's long and
pernicious history as a signal of impending violence." 538 U.S. at 363. Because of that
history, Justice O'Connor wrote: "The First Amendment permits Virginia to outlaw cross
burnings done with the intent to intimidate because burning a cross is a particularly
virulent form of intimidation." 538 U.S. at 363. She categorized the cross burning as a
true threat, as had the Virginia Supreme Court.
Justice O'Connor, however, disagreed with the Virginia Court's application of
R.A.V. to hold that the cross-burning statute was unconstitutional because it discriminated
on the basis of content and viewpoint. Black, 262 Va. at 771-76. She concluded the
Virginia statute fell within an exception discussed in R.A.V. under which "the First
Amendment permits content discrimination 'based on the very reasons why the particular
class of speech at issue . . . is proscribable.'" Black, 538 U.S. at 362 (quoting R.A.V., 505
U.S. at 393). That very reason, according to Justice O'Connor, was because the statute
prohibited a true threat. And it did not single out "'disfavored topics'" or differentiate
conduct based on the "victim's race, gender, or religion, or because of the victim's
'political affiliation, union membership, or homosexuality.'" 538 U.S. at 362.
13
Justice Stevens concurred, writing that an intent to intimidate "qualifies as the kind
of threat that is unprotected by the First Amendment." 538 U.S. at 368 (Stevens, J.,
concurring). And Justice Scalia agreed that "a State may, without infringing the First
Amendment, prohibit cross burning carried out with the intent to intimidate." 528 U.S. at
368 (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in
part); see also 538 U.S. at 388 (Thomas, J., dissenting) ("Although I agree with the
majority's conclusion that it is constitutionally permissible to 'ban . . . cross burning
carried out with the intent to intimidate,' [citation omitted] I believe that the majority errs
in imputing an expressive component to the activity in question[.]").
The remaining justices disagreed. In an opinion written by Justice Souter joined by
Justices Kennedy and Ginsburg, they agreed with the Virginia Supreme Court that the
statute was unconstitutional and could not be saved by any R.A.V. exception. 538 U.S. at
380 (Souter, J., concurring in the judgment in part and dissenting in part). But the Court's
differences of opinion did not end there.
Justice O'Connor, having disagreed with the Virginia Supreme Court's first
holding, turned to its second holding—that the statute was overbroad because of the
prima facie evidence provision providing that "[a]ny such burning of a cross shall be
prima facie evidence of an intent to intimidate a person or group of persons." Va. Code
Ann. § 18.2-423. The plurality observed that cross burning can occur for reasons other
than intimidation. "[S]ometimes the cross burning is a statement of ideology, a symbol of
group solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan
itself. Thus, '[b]urning a cross at a political rally would almost certainly be protected
expression.'" Black, 538 U.S. at 365-66 (quoting R.A.V., 505 U.S. at 402 n.4 [White, J.,
concurring in judgment], and citing Brandenburg v. Ohio, 395 U.S. 444, 445, 89 S. Ct.
1827, 23 L. Ed. 2d 430 [1969]). The plurality opinion concluded: "The prima facie
evidence provision in this case ignores all of the contextual factors that are necessary to
14
decide whether a particular cross burning is intended to intimidate. The First Amendment
does not permit such a shortcut." 538 U.S. at 367. Although Justice Souter did not join
this portion of the plurality opinion, he expressed similar concerns. See 538 U.S. at 384-
87.
Justices Scalia and Thomas neither joined in this portion of the plurality opinion
nor expressed similar concerns. Instead, they disagreed with the plurality's conclusion the
prima facie evidence provision made the statute unconstitutional. 538 U.S. at 368-79.
1.5 Black's guidance
Black did not directly address whether the First Amendment tolerates a conviction
for making a threat even though there was no intent to cause fear. Even so, the decision
explains the intent necessary to have a true threat prosecuted without violating the First
Amendment's protections. The explanation begins with the passage defining a "true
threat." Again, the Court said:
"'True 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. See Watts v. United States, [394 U.S.] at
708 ('political hyberbole' is not a true threat); R.A.V. v. City of St. Paul, 505 U.S., at 388.
The speaker need not actually intend to carry out the threat. Rather, a prohibition on true
threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear
engenders,' in addition to protecting people 'from the possibility that the threatened
violence will occur.'" 538 U.S. at 359-60.
A majority of the Court (the four members of the plurality, plus Justice Scalia)
explicitly agreed on this statement. See 538 U.S. at 368 (Scalia, J., joining Parts I-III of
Justice O'Connor's opinion).
15
Here, in rejecting Boettger's arguments, the panel seemingly focused on the
second portion of the first sentence in which the Court referred to "an intent to commit an
act of unlawful violence to a particular individual or group of individuals." It held the
Black Court's use of the word "'intent' is a shorthand method for referring to the need for
a mens rea higher than accidental or negligent conduct." Boettger, 2017 WL 2709790, at
*4. The panel also concluded that the Black Court "did not rule on what level of mens rea
is necessary in a criminal threat statute," in part because the Virginia statute required
subjective intent and the "constitutional necessity of that provision was never at issue."
Boettger, 2017 WL 2709790, at *4.
Although the panel did not cite cases from other jurisdictions, several courts have
reached similar conclusions. See United States v. Clemens, 738 F.3d 1, 10 (1st Cir. 2013)
(interpreting Black's reference to "those statements where the 'speaker means to
communicate a serious expression of an intent to commit an act of unlawful violence'" as
"only requir[ing] the speaker to 'intend to make the communication,' not the threat."
[quoting Black, 538 U.S. at 359; United States v. Elonis, 730 F.3d 321, 329 (3d Cir.
2013)]), rev'd and remanded 575 U.S. ___, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015);
United States v. Martinez, 736 F.3d 981, 986-87 (11th Cir. 2013) ("Black did not import a
subjective-intent analysis into the true threats doctrine. Rather, Black was primarily a
case about the overbreadth of a specific statute—not whether all threats are determined
by a subjective or objective analysis in the abstract."), vacated and remanded 575 U.S.
___, 135 S. Ct. 2798 (2015); United States v. Jeffries, 692 F.3d 473, 479-80 (6th Cir.
2012) ("[Black] says nothing about imposing a subjective standard on other threat-
prohibiting statutes, and indeed had no occasion to do so: the Virginia law itself required
subjective 'intent.' The problem in Black thus did not turn on subjective versus objective
standards for construing threats. It turned on overbreadth—that the statute lacked any
standard at all."); United States v. White, 670 F.3d 498, 508 (4th Cir. 2012) ("A careful
16
reading of the requirements of § 875[c], together with the definition from Black, does not,
in our opinion, lead to the conclusion that Black introduced a specific-intent-to-threaten
requirement into § 875[c] and thus overruled our circuit's jurisprudence, as well as the
jurisprudence of most other circuits, which find § 875[c] to be a general intent crime and
therefore require application of an objective test in determining whether a true threat was
transmitted."); United States v. Nicklas, 713 F.3d 435, 439-40 (8th Cir. 2013) (adopting
Sixth Circuit's reasoning in Jeffries, 692 F.3d at 479-80); State v. Taupier, 330 Conn.
149, 170-71, 193 A.3d 1 (2018), cert. denied 139 S. Ct. 1188 (2019) (Black does "not
support the proposition a speaker constitutionally may be punished only when he has a
specific intent to intimidate"; "[T]he plurality in Black was focused more on the Virginia
cross burning statute's failure to differentiate between different levels of intent than on
the specific mens rea that is constitutionally required before a person may be punished
for threatening speech.").
We disagree with these courts' reading of Black. Many of these decisions follow
the reasoning of Elonis, 730 F.3d 321, which the United States Supreme Court reversed.
Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015). Plus, there
are several other reasons we do not dismiss the guidance provided by what we view as a
plain reading of Black.
Much of that guidance can be found in the sentence defining a true threat: "'True
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." Black, 538 U.S. at 359. The sentence has ambiguity. But the
interpretation by the panel and other courts taking the same view ignores the first part of
the sentence—that the speaker must "mean" to communicate a serious expression of an
intent to commit violence. As a transitive verb, "mean" is defined as: "To have as a
purpose or an intention; intend; To design, intend, or destine for a certain purpose or
17
end." American Heritage Dictionary of the English Language 1088-89 (5th ed. 2011); see
Webster's Third New Int'l Dictionary 1398 (1993) ("to have in the mind [especially] as a
purpose or intention"; "to have an intended purpose").
Given this, we agree with the Tenth Circuit Court of Appeals' holding that this
sentence "requir[es] more than a purpose to communicate just the threatening words. It is
requiring that the speaker want the recipient to believe that the speaker intends to act
violently." United States v. Heineman, 767 F.3d 970, 978 (10th Cir. 2014). The Tenth
Circuit found more support for this position in a later sentence in the same paragraph in
which Justice O'Connor applied the true-threat definition to intimidation: "'Intimidation
in the constitutionally proscribable sense of the word is a type of true threat, where a
speaker directs a threat to a person or group of persons with the intent of placing the
victim in fear of bodily harm or death.'" 767 F.3d at 978 (quoting Black, 538 U.S. at 360,
and adding emphases). Based on these passages, the Tenth Circuit "read Black as
establishing that a defendant can be constitutionally convicted of making a true threat
only if the defendant intended the recipient of the threat to feel threatened." 767 F.3d at
978.
Responding to those courts that read Black as only conveying that the speaker had
to intend to utter the words, the Tenth Circuit observed that the Black Court had made
clear the speaker uttering the threat need not actually intend to commit violence.
Heineman, 767 F.3d at 978. The Tenth Circuit concluded these statements by the Court
would be meaningless if a true threat was not defined to require the intent to threaten:
"The proposition that the speaker need not intend to carry out the threat is a helpful
qualification if there is a requirement that the defendant intend the victim to feel
threatened. . . . But no such qualification is called for if the preceding sentence means that
the only requisite mens rea is that the defendant 'knowingly says the words.' . . . Once it is
established that the sole requisite intent is to say the (threatening) words, no reasonable
18
person (juror) would then need to be informed that the defendant need not intend to carry
out the threat. If there is no requirement that the defendant intend the victim to feel
threatened, it would be bizarre to argue that the defendant must still intend to carry out
the threat." 767 F.3d at 980-81.
Likewise, the Ninth Circuit Court of Appeals determined that a "natural reading"
of Black's definition of true threats "embraces not only the requirement that the
communication itself be intentional, but also the requirement that the speaker intend for
his language to threaten the victim." United States v. Cassel, 408 F.3d 622, 631 (9th Cir.
2005); see United States v. Bagdasarian, 652 F.3d 1113, 1116-18 (9th Cir. 2011). The
Cassel court examined each of the separate opinions in Black and concluded that "eight
Justices agreed that intent to intimidate is necessary and that the government must prove
it in order to secure a conviction." 408 F.3d at 632 (citing Black, 538 U.S. at 359-60, 364-
65, 367 [O'Connor, J., plurality]; 538 U.S. at 368 [Scalia, J., concurring in part,
concurring in the judgment in part, and dissenting in part]; 538 U.S. at 385, 387 [Souter,
J., concurring in the judgment in part and dissenting in part]); see also Schauer,
Intentions, Conventions, and the First Amendment, 55 Sup. Ct. Rev. 197, 217 (2003)
("[I]t is plain that . . . the Black majority . . . believed that the First Amendment imposed
upon Virginia a requirement that the threatener have specifically intended to
intimidate."); Gilbert, Mocking George: Political Satire as 'True Threat' in the Age of
Global Terrorism, 58 U. Miami L. Rev. 843, 883-84 (2004) ("[C]ross burning is
proscribable as a true threat where it is done with the intention of intimidating. Where,
however, cross burning is not done to intimidate . . . its use is protected under the First
Amendment, even where the effect of the cross burning is to intimidate."); cf. Rothman,
Freedom of Speech and True Threats, 25 Harv. J.L. & Pub. Pol'y 283, 317-18 (2001)
(arguing, before Black, for a subjective intent requirement, and observing that "First
Amendment law often requires proof of a specific state of mind before finding a speaker
liable or allowing a criminal conviction of the speaker").
19
Further, although the panel and other courts are correct in stating that Black was
dealing with a statute that clearly required the cross burning to occur "with the intent of
intimidating," the Black plurality, in the context of its overbreadth analysis, discussed
what had to be proven in order for there to be a true threat. This discussion became more
general than the specific statute before the Court. Significantly, Justice O'Connor stated:
"The prima facie evidence provision in this case ignores all of the contextual factors that
are necessary to decide whether a particular cross burning is intended to intimidate. The
First Amendment does not permit such a shortcut." 538 U.S. at 367.
This language, in particular, suggests the members of the Court joining Justice
O'Connor's opinion went beyond recognizing that intent was part of the statutory
elements of the Virginia statute. They also recognized that intent to intimidate must exist
in order to distinguish cross burning as a means of protected expression under the First
Amendment from cross burning as a threat of impending violence unprotected by the
First Amendment. See 538 U.S. at 368 (Stevens, J., concurring) (An intent to intimidate
"qualifies as the kind of threat that is unprotected by the First Amendment.").
In other words, the plurality's overbreadth analysis was "predicated on the
understanding that the First Amendment requires the speaker to intend to place the
recipient in fear." Heineman, 767 F.3d at 978. And, as the Cassel court concluded:
"The Court's insistence on intent to threaten as the sine qua non of a
constitutionally punishable threat is especially clear from its ultimate holding that the
Virginia statute was unconstitutional precisely because the element of intent was
effectively eliminated by the statute's provision rendering any burning of a cross on the
property of another 'prima facie evidence of an intent to intimidate.'" 408 F.3d at 631.
20
The Tenth Circuit also pointed out that Justice O'Connor wrote that the prima facie
evidence provision "'does not distinguish between a cross burning done with the purpose
of creating anger or resentment and a cross burning done with the purpose of threatening
or intimidating a victim.'" Black, 538 U.S. at 366. The Tenth Circuit then asked: "But
how could that be a First Amendment problem if the First Amendment is indifferent to
whether the speaker had an intent to threaten?" Heineman, 767 F.3d at 978-79. It then
answered: "The First Amendment overbreadth doctrine does not say simply that laws
restricting speech should not prohibit too much speech. It says that laws restricting
speech should not prohibit too much speech that is protected by the First Amendment."
767 F.3d at 979. And Justice O'Connor's discussion makes clear "'the element of intent
[is] the determinative factor separating protected expression from unprotected criminal
behavior.'" Cassel, 408 F.3d at 632 (referring to statements in Black, 538 U.S. at 365, that
"'same act' 'may mean that a person is engaging in constitutionally proscribable
intimidation [or] only that the person is engaged in core political speech'" and "'a burning
cross is not always intended to intimidate'").
Although Justice O'Connor's opinion only represented the position of four Justices,
Justice Souter's opinion made similar points when discussing the prima facie evidence
provision. He likewise noted that cross burning can be consistent with an intent to
intimidate or with an "intent to make an ideological statement free of any aim to
threaten." He referred to the intent to intimidate as "proscribable and punishable intent"
and the other as permissible intent. Black, 538 U.S. at 385-86 (Souter, J., concurring in
the judgment in part and dissenting in part). Both Justice O'Connor's and Justice Souter's
opinions highlight that, if the First Amendment did not impose a specific intent
requirement, "Virginia's statutory presumption was superfluous to the requirements of the
Constitution, and thus incapable of being unconstitutional in the way that the majority
understood it." Schauer, 55 Sup. Ct. Rev. at 217.
21
We conclude a majority of the Black Court determined an intent to intimidate was
constitutionally, not just statutorily, required. "Intimidation in the constitutionally
proscribable sense of the word is a type of true threat, where a speaker directs a threat to
a person or group of persons with the intent of placing the victim in fear of bodily harm or
death." (Emphases added.) Black, 538 U.S. at 360.
Further, although Black addressed intimidation, its analysis applies equally to
K.S.A. 2018 Supp. 21-5415(a)(1). The statute draws no distinction based on the means
through which fear is caused. The plain meaning of the conduct prohibited by K.S.A.
2018 Supp. 21-5415(a)(1)—causing fear—is indistinguishable from the intimidation
provision at issue in Black.
1.6 Recklessness
The Court of Appeals panel, however, rejected Boettger's argument that the Black
Court's various references to "intent" eliminated the possibility of a true threat being
made with a reckless disregard for causing fear of violence. The panel concluded Black
left open the possibility of the culpable mental state being recklessness. The panel then
turned to a discussion of Kansas law that defines "recklessness" as a culpable mental state
that means a person who acts recklessly is aware of the nature of his or her conduct. 2017
WL 2709790, at *4-5 (quoting K.S.A. 2016 Supp. 21-5202[a], [b], [j] and citing Kansas
cases). These Kansas authorities, according to the panel, aligned with the following
statement from Justice Alito's concurring and dissenting opinion in Elonis, 135 S. Ct.
2001: "Someone who acts recklessly with respect to conveying a threat necessarily
grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware
that others could regard his statements as a threat, but he delivers them anyway." 135 S.
Ct. at 2015 (Alito, J., concurring in part and dissenting in part).
22
The panel held: "Recklessness is sufficient mens rea to separate wrongful conduct
from otherwise innocent conduct. Accordingly, we find that K.S.A. 2016 Supp. 21-
5415(a)(1) does not criminalize constitutionally protected conduct by criminalizing
threats to commit violence communicated in reckless disregard of the risk of causing fear
in another." Boettger, 2017 WL 2709790, at *5.
We do not quarrel with the panel's conclusion that recklessness can differentiate
criminal conduct from innocent conduct. But that does not answer whether the statute
violates the First Amendment by punishing protected speech. And while Justice Alito
argues recklessness satisfies the First Amendment, we have trouble squaring that
conclusion with Black and Elonis.
In Elonis, Anthony Douglas Elonis had used social media to post self-styled rap
lyrics containing graphically violent language. In the posts he wrote disclaimers saying
the lyrics were "fictitious" and not intended to depict real persons. He also stated he was
exercising his First Amendment rights. These posts led him to be charged with five
counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to transmit in
interstate commerce "any communication containing any threat . . . to injure the person of
another." The statute did not set out a required mental state. At trial, Elonis requested a
jury instruction that the Government had to prove that he intended to communicate a
threat. The trial court rejected this argument and instead instructed the jury under the
standard of whether "'a reasonable person would foresee that the statement would be
interpreted by those to whom the maker communicates the statement as a serious
expression of an intention to inflict bodily injury or take the life of an individual.'" 135 S.
Ct. at 2007. The United States Supreme Court held this instruction was erroneous. 135 S.
Ct. at 2012.
23
The Court applied a rule of statutory construction providing that the "'mere
omission from a criminal enactment of any mention of criminal intent' should not be read
'as dispensing with it.'" 135 S. Ct. at 2009 (quoting Morissette v. United States, 342 U.S.
246, 250, 72 S. Ct. 240, 96 L. Ed. 288 [1952]). Instead, the Court would read into the
statute "'only that mens rea which is necessary to separate wrongful conduct from
"otherwise innocent conduct."'" 135 S. Ct. at 2010. And, in the context of the threat
statute at issue, "'the crucial element separating legal innocence from wrongful conduct'
is the threatening nature of the communication. . . . The mental state requirement must
therefore apply to the fact that the communication contains a threat." 135 S. Ct. at 2011.
The majority found error because the jury instruction imposed a negligence standard. It
noted the court had "'long been reluctant to infer that a negligence standard was intended
in criminal statutes'" because its focus on what a reasonable person would perceive was
"inconsistent with 'the conventional requirement for criminal conduct—awareness of
some wrongdoing.'" 135 S. Ct. at 2011.
The Elonis majority stopped short of answering the question before us about
whether a statute must require subjective intent to survive a First Amendment attack. It
noted that during oral argument Elonis' attorney had contended that a reckless mental
state would not be sufficient. But because the parties had not briefed the question, the
majority refused to address it. And it specifically stated it was not addressing any First
Amendment issues. 135 S. Ct. at 2012.
Justice Alito took the majority to task for not answering whether reckless conduct
could make a true theat. He later expressed his view that recklessness should suffice and
that applying a reckless mens rea does not violate the First Amendment. 135 S. Ct. at
2013-16 (Alito, J., concurring in part and dissenting in part). His discussion focused on
how the recklessness standard applied to Elonis, who had "made sure his wife saw his
posts" and, in context, who could blame her for being fearful because "[t]hreats of
24
violence and intimidation are among the most favored weapons of domestic abusers, and
the rise of social media has only made those tactics more commonplace." 135 S. Ct. at
2017 (Alito, J., concurring in part and dissenting in part). This context is readily
distinguishable from the facts here, as well as those in Black and Watts.
Justice Alito then recognized and dismissed the possibility of a First Amendment
issue:
"It can be argued that § 875(c), if not limited to threats made with the intent to
harm, will chill statements that do not qualify as true threats, e.g., statements that may be
literally threatening but are plainly not meant to be taken seriously. We have sometimes
cautioned that it is necessary to 'exten[d] a measure of strategic protection' to otherwise
unprotected false statements of fact in order to ensure enough '"breathing space"' for
protected speech. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997,
41 L. Ed. 2d 789 (1974) (quoting NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328,
9 L. Ed. 2d 405 (1963)). A similar argument might be made with respect to threats. But
we have also held that the law provides adequate breathing space when it requires proof
that false statements were made with reckless disregard of their falsity. See New York
Times, 376 U.S., at 279-280 (civil liability); Garrison, 379 U.S., at 74-75 (criminal
liability). Requiring proof of recklessness is similarly sufficient here." 135 S. Ct. at 2017(Alito, J., concurring in part and dissenting in part).
At least two state courts have agreed with Justice Alito's view and others have
recognized that recklessness may be a sufficient mens rea for a true threat. See State v.
Taupier, 330 Conn. 149, 170-71, 193 A.3d 1 (2018), cert. denied 139 S. Ct. 1188 (2019)
(collecting some post-Black cases and holding recklessness standard constitutional in a
true-threat context); Major v. State, 301 Ga. 147, 150-51, 800 S.E.2d 348 (2017)
(upholding recklessness standard post-Black); see also Commonwealth v. Knox, 190 A.3d
1146, 1156 (Pa. 2018), cert. denied 139 S. Ct. 1547 (2019) (collecting some post-Black
25
cases and noting an open question existed about whether recklessness standard can be
applied in a true-threat context).
Our reading of Black differs, however, and is reflected in Justice Sotomayor's
opinion in Perez v. Florida, 580 U.S. ___, 137 S. Ct. 853, 855, 197 L. Ed. 2d 480 (2017)
(Sotomayor, J., concurring in denial of petition for writ of certiorari):
"Together, Watts and Black make clear that to sustain a threat conviction without
encroaching upon the First Amendment, States must prove more than the mere utterance
of threatening words—some level of intent is required. And these two cases strongly
suggest that it is not enough that a reasonable person might have understood the words as
a threat—a jury must find that the speaker actually intended to convey a threat." 137 S.
Ct. at 855.
As we have discussed, we, too, read Black as holding that the speaker must
actually intend to convey a threat. Acting with an awareness that words may be seen as a
threat leaves open the possibility that one is merely uttering protected political speech,
even though aware some might hear a threat. Boettger offers examples.
Boettger first argues the protester in Watts could have been convicted under the
Kansas statute. The protester communicated he would shoot the president; he thus made a
threat. See K.S.A. 2018 Supp. 21-5111(ff) (defining "threat"). And he was aware of the
risk of causing fear but continued anyway. See K.S.A. 2018 Supp. 21-5202(j) (defining
"reckless"). As another example, Boettger poses the situation of a Black Lives Matter
protester repeating the lyrics of a well-known police protest song while standing near
police officers. He quotes the lyrics as a threat to "'[t]ak[e] out a cop or two.' . . . N.W.A.,
Fuck tha Police, on Straight Outta Compton (Ruthless/Priority 1989)." Even if the
protester did not intend to threaten the police, Boettger argues "[a] person in that situation
runs a real risk of a conviction for reckless threat under Kansas' law, despite acting in
26
protest by performing a controversial work of art." Finally, he suggests burning a "cross
on private property within the view of a public roadway and other houses, where locals
had stopped to watch" as part of a political rally would be an activity about which "the
perpetrators would be conscious that it is seen as a threat, and would be acting in
disregard of substantial and unjustifiable risk of causing fear." Such an act could be
punishable under Kansas law, he argues, even if the protester intended politically
protected speech on private property and did not intend to cause fear of violence.
We find these examples persuasive illustrations of ways in which K.S.A. 2018
Supp. 21-5415(a)(1) potentially criminalizes speech protected under the First
Amendment.
1.7 Summary
Black found specific intent was necessary to convict under the Virginia cross-
burning statute at issue in that case. See 538 U.S. at 360. The Court stated "[i]ntimidation
in the constitutionally proscribable sense of the word is a type of true threat, where a
speaker directs a threat to a person or group of persons with the intent of placing the
victim in fear of bodily harm or death." Black, 538 U.S. at 360. It strains the plain
meaning of the Court's language to conclude that "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" are not made "with the intent of placing the
[particular individual or group of individuals] in fear of bodily harm or death." Black, 538
U.S. at 359-60. A person who "means to communicate a serious expression of an intent
to commit an act of unlawful violence" is aware of the illegality of the violence he or she
purportedly intends to commit and makes a serious expression of that intent, which he or
she meant to communicate. (Emphasis added.) See Black, 538 U.S. at 360. This
definition conveys that the conduct is intentional.
27
Under Black, the portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a
conviction if a threat of violence is made in reckless disregard for causing fear causes the
statute to be unconstitutionally overbroad because it can apply to statements made
without the intent to cause fear of violence. See K.S.A. 2018 Supp. 21-5202(h) and (j)
(defining "intentionally" and "recklessly" in Kansas criminal statutes). The provision
significantly targets protected activity. And its language provides no basis for
distinguishing circumstances where the speech is constitutionally protected from those
where the speech does not warrant protection under the First Amendment.
Boettger's conviction for reckless criminal threat must be reversed because it was
based solely on the unconstitutional provision. See Whitesell, 270 Kan. 259, Syl. ¶ 6
(stating test for overbreadth).
ISSUES 2 and 3: Our holding renders these issues moot.
Boettger also argued K.S.A. 2018 Supp. 21-5415(a)(1) was unconstitutionally
vague. And he alternatively contended his conviction should be overturned on another
basis by arguing the jury instruction for reckless criminal threat was clearly erroneous.
We need not reach these issues, however, because we have already granted Boettger the
relief he seeks by reversing his conviction.
CONCLUSION
We find the reckless criminal threat provision of K.S.A. 2018 Supp. 21-5415(a)(1)
unconstitutionally overbroad. For that reason, we reverse Boettger's conviction, which is
based solely on that provision, and vacate his sentence.
28
Judgment of the Court of Appeals is reversed. Judgment of the district court is
reversed.
JOHNSON, J., not participating.
29