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analyzing whether statements made by a student constituted "true threats," which are not entitled to First Amendment protection, after declining to grant allocatur on the question of evidentiary sufficiency
Summary of this case from In re S.A.ROpinion
No. 23 MAP 2020
12-21-2021
In the INTEREST OF: J.J.M., a Minor Appeal of: J.J.M., a Minor
Sara E. Jacobson, Esq., for ACLU of Pennsylvania, Amicus Curiae. Christine Frances Murphy, Esq., Lehigh County District Attorney's Office, Michael F. J. Piecuch, Esq., Snyder County District Attorney's Office, for Pennsylvania District Attorneys Association, Amicus Curiae. Sara Jeannette Rose, Esq., ACLU of Pennsylvania, for ACLU of Pennsylvania, Amicus Curiae. Robert Michael Buttner, Esq., Scranton, Demetrius William Fannick, Esq., Steven M. Greenwald, Esq., Wilkes-Barre, Luzerne County Public Defender's Office, for J.J.M., Appellant. Stefanie Joy Salavantis, Esq., Gerry Scott IV, Esq., Luzerne County District Attorney's Office, for Commonwealth of Pennsylvania, Appellee.
Sara E. Jacobson, Esq., for ACLU of Pennsylvania, Amicus Curiae.
Christine Frances Murphy, Esq., Lehigh County District Attorney's Office, Michael F. J. Piecuch, Esq., Snyder County District Attorney's Office, for Pennsylvania District Attorneys Association, Amicus Curiae.
Sara Jeannette Rose, Esq., ACLU of Pennsylvania, for ACLU of Pennsylvania, Amicus Curiae.
Robert Michael Buttner, Esq., Scranton, Demetrius William Fannick, Esq., Steven M. Greenwald, Esq., Wilkes-Barre, Luzerne County Public Defender's Office, for J.J.M., Appellant.
Stefanie Joy Salavantis, Esq., Gerry Scott IV, Esq., Luzerne County District Attorney's Office, for Commonwealth of Pennsylvania, Appellee.
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
Justice Dougherty delivers the opinion of the Court with respect to Parts I, II, III, and IV(a) and announces the judgment of the Court with respect to all other issues.
OPINION
JUSTICE DOUGHERTY We recently observed it "remains an open question" whether the First Amendment to the United States Constitution permits States to criminalize threats made in reckless disregard of the risk of causing fear. Commonwealth v. Knox , 647 Pa. 593, 190 A.3d 1146, 1157 n.10 (2018). We now resolve that unsettled issue. Like the court below, we hold the First Amendment tolerates a conviction — in this case, under Pennsylvania's terroristic threats statute, 18 Pa.C.S. § 2706(a)(3) — for making a threatening statement even where the speaker did not intend to cause terror. However, upon our de novo review of the record, we are constrained to conclude the statements underlying appellant J.J.M.’s adjudication, though perhaps concerning to some because they were uttered in a school hallway only days after a deadly high school shooting, did not cross the constitutional threshold from protected speech to an unprotected true threat. We therefore vacate appellant's adjudication of delinquency.
This case was reassigned to this author.
I. Background
Some time between mid-January and the early part of February 2018, K.S., a 14-year-old student at West Side Career and Technology Center ("WSCTS"), a vocational high school, heard appellant, a 15-year-old student at the school, say he "doesn't think people deserve to live and everyone should just die." N.T. Hearing, 4/26/2018 at 22. K.S., who described appellant as a loner who likes to wear black attire, did not report the statement to school officials at that time. It was not until weeks later when some "friends approached [her]" with information pertaining to a second statement by appellant that K.S. began to worry about the comments. Id . at 25.
Appellant's second statement was made on February 20, 2018, six days after 17 high school students at Marjory Stoneman Douglas High School in Parkland, Florida were fatally shot. M.W., a 15-year-old classmate of appellant's, overheard appellant say "[h]e wanted to beat the record of 19." Id . at 14. M.W. heard this statement from only two or three feet away while in the hallway between classes. Although appellant's remark was not directed at her, M.W. was unsure whether he was "talking to someone [else], or [if] he just said it" aloud. Id . Still, M.W. found the comment concerning enough to report it to school administrators before the day's end. Meanwhile, K.S., after learning of appellant's "beat the record" statement secondhand, followed suit and reported what she had heard. See id . at 25 ("[A]fter I heard other statements [appellant]’s made, I then spoke up about it because it was a serious problem. ... I was nervous. I was scared."). Following these reports, appellant was expelled from WSCTS.
As noted, 17 students were tragically killed in the Parkland incident, not 19. However, M.W. candidly acknowledged during her testimony that she could not recall the precise number referenced by appellant. See N.T. Hearing, 4/26/2018 at 14 ("Was it 19? ... I think that's the number.").
More precisely, M.W. testified she alerted school officials because she felt "it was concerning due to past statements. I felt it needed to be taken seriously." N.T. Hearing, 4/26/2018 at 15. She further asserted, without elaboration, that she had in the past heard appellant say "[t]hings in reference to death and such[,]" and that he had "shown signs of possibly being violent." Id . at 13, 15. But, as will be discussed in greater detail infra , the master who presided over the hearing sustained appellant's objection to any references regarding "past statements" he supposedly made. See id . at 16 (striking "any reference to ‘past statements’ " from M.W.’s testimony). And the prosecutor expressly declined to challenge that ruling. See id . (explaining the Commonwealth was "not concerned with past statements" since "the statement [M.W.] heard in the hall is sufficient").
The Commonwealth later charged appellant with terroristic threats pursuant to Section 2706(a)(1) and (3) of the Crimes Code, and disorderly conduct. Following a hearing before a juvenile master, at which K.S. and M.W. testified as recounted above, appellant was adjudicated delinquent of one charge of terroristic threats under Section 2706(a)(3) ; the remaining charges were not substantiated. In support of its ruling, the juvenile master stated:
Section 2706(a) provides:
(a) Offense defined. --A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to:
(1) commit any crime of violence with intent to terrorize another;
(2) cause evacuation of a building, place of assembly or facility of public transportation; or
(3) otherwise cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.
18 Pa.C.S. § 2706(a).
[Appellant] did commit the offense of [terroristic threats under Section 2706(a)(3),] having communicated indirectly, and having caused terror and serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience by way of committing the following acts: He spoke in the hallway at school, in a manner that was heard by others — within days of a
mass school shooting — stating that he wanted to beat the record of 19, and by further stating that he doesn't think people deserve to live, and everyone should just die.
Such statements caused terror in the witnesses, and furthermore caused serious public inconvenience because the witnesses missed their classes or school work in order to seek help and guidance, and report the matter. The matter also required the convention of a school hearing to determine what actions needed to be taken to both protect the school students, and prevent such future incidences.
Juvenile Master's Findings of Fact, 4/26/2018 at 1. As part of its disposition, the juvenile master placed appellant on probation, ordered him to comply with any mental health recommendations, and prohibited him from having contact with weapons.
Appellant filed an appeal, and the matter proceeded to a de novo hearing before the Luzerne County Court of Common Pleas. By the parties’ agreement, the trial court received the audio testimony and transcript from the prior proceeding in lieu of recalling the witnesses. Based on that evidence, on May 14, 2018, the trial court upheld appellant's adjudication of delinquency under Section 2706(a)(3). Appellant then filed a post-dispositional motion arguing, inter alia , that the subsection under which he was adjudicated violates the First Amendment. The trial court denied the motion on July 16, 2018. Regarding appellant's free speech claim, the trial court briefly remarked appellant's statements "were threats that invaded [K.S.’s and M.W.’s] sense of personal security and caused psychological concern[,]" Trial Court Opinion, 7/16/2018 at 9, but it did not directly confront the First Amendment issue.
Appellant next appealed to the Superior Court, arguing, first, that the evidence was insufficient to sustain his adjudication because his statements did not constitute threats, and because he did not possess the necessary mens rea for conviction under Section 2706(a)(3). He also continued to claim Section 2706(a)(3) is unconstitutional in that it violates the right to free speech under the First Amendment. As well, appellant alleged Section 2706(a)(3) is unconstitutionally vague on its face and as applied, such that it violates his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution.
A unanimous three-judge panel of the Superior Court affirmed appellant's adjudication of delinquency in a published opinion. In the Interest of: J.J.M. , 219 A.3d 174 (Pa. Super. 2019). The court first rejected appellant's challenge to the sufficiency of the evidence. Appellant's argument in support of this claim was twofold: (1) he asserted his statements did not amount to a true threat; and (2) he maintained the evidence did not support a finding of a mens rea beyond mere negligence, because there was no evidence establishing he knew that anyone who overheard his statement would associate it with previous school shootings. The court was not convinced. Pointing to the recent proliferation of school shootings in America and, in particular, the high school shooting in Parkland less than a week earlier, the court reasoned that "from this context and the circumstances surrounding [a]ppellant's statement, the words expressed an intent to cause harm and an indication of impending menace." Id . at 181. For similar reasons, the court did "not hesitate to conclude [a]ppellant consciously disregarded a substantial and unjustifiable risk that his threat would terrorize his fellow students." Id ., citing 18 Pa.C.S. § 302(a)(3) (defining recklessness).
In response to appellant's assertion he could not have anticipated that other students would relay his second statement to K.S., to whom he previously expressed his view that people "should just die," the Superior Court clarified that "[a]ppellant's ‘beat the record’ statement ... was itself alone sufficient to constitute a terroristic threat." J.J.M. , 219 A.3d at 181 n.6.
Turning to appellant's claim Section 2706(a)(3) violates his First Amendment right to free speech, the Superior Court began by acknowledging that children do not " ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ " Id . at 182, quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Yet, it further observed the United States Supreme Court has "repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools[,]" and that "[p]art of a school's awesome charge is to balance the exercise of rights that enrich learning with order and a safe and productive school environment." Id . (citations and quotations omitted).
The Superior Court also recognized that neither this Court, nor the High Court, has specifically decided "whether threats communicated not with the subjective intent to terrorize, but instead with reckless disregard for the risk of causing terror in the listener, [are protected] under the First Amendment." Id . at 183. Nevertheless, citing our decision in Knox , supra , the Superior Court opined we would likely require some inquiry into the speaker's mental state and "would not apply a wholly objective test focused only upon the effects a threat had upon the recipients as some of the federal circuits employ." Id . at 184. Ultimately, the court resolved that, "in the context of the special circumstances attendant with threats made in a school setting, a threat made with the mental state of recklessness, i.e. , with conscious disregard of the risk of causing terror, constitutes a true threat falling outside the scope of the protections of the First Amendment." Id . Applying this understanding of the law to the facts, the Superior Court concluded:
[T]he Commonwealth[ ] ... established that [a]ppellant communicated a true threat that was not protected by the First Amendment. The circumstances surrounding [a]ppellant's statement that he "wanted to beat the record of 19" evidenced that it was a threat, and that [a]ppellant communicated it with a conscious disregard for the likelihood that his words would engender fear in those who heard them. Appellant's subjective mental state was such that he acted with knowledge of its wrongness, for the events of the day in question ... do not suggest that [a]ppellant spoke to express an opinion, or that he was just jesting, or even that he was merely negligent in inducing fear in his schoolmates.
Rather, [a]ppellant, who had cultivated an image among his classmates as one who relished the thought of death to human beings, must have known the effect that his words would have upon his fellow students in the wake of the Parkland shooting. Yet he chose to utter them anyway, in school, in the hallway between classes, for anyone and everyone around him to hear. We do not believe the First Amendment is or ever
was intended to give [a]ppellant a protected right to do so.
Id . at 184-85 (footnote omitted).
Finally, the Superior Court rejected appellant's claim that Section 2706(a)(3) is void for vagueness, relying upon extant and longstanding case law holding otherwise. See id . at 185, citing, e.g. , Commonwealth v. Chance , 312 Pa.Super. 435, 458 A.2d 1371, 1375 (1983) ( Section 2706 describes "the category of unlawful activity with sufficient precision as to place a person charged with such an offense on notice as to what conduct was proscribed by the statute"). And the court likewise rejected appellant's related claim that the statute is unconstitutionally vague as applied to him because "he had no reason to expect, based upon the language of the statute, that he could be in violation of it through the combination of two different statements that he said weeks apart from each other." Id . at 185-86. In this respect, the Superior Court reiterated its position that appellant's singular statement that he wanted to "beat the record" — and not any of his prior statements generally alluding to death — "was the threat that sustains his adjudication." Id . at 186 ; see also id . ("Appellant's prior communications about his affinity for ‘death and such’ to his fellow students were not necessary to make the expression of his aspirations to ‘beat the record’ a threat.").
Appellant subsequently filed a timely petition for allowance of appeal. We granted review to consider, as a matter of first impression, whether, in permitting a conviction for terroristic threats upon a showing of mere recklessness on behalf of the speaker, Section 2706(a)(3) is unconstitutionally overbroad because it criminalizes speech that may be protected under the First Amendment. In the Interest of: J.J.M. , 228 A.3d 487 (Pa. 2020) (per curiam ).
Appellant additionally sought discretionary review of the sufficiency of his adjudication of delinquency under Section 2706(a)(3). We did not grant review of that issue. As we will elaborate more fully below, however, the question before us nevertheless entails a factual component requiring our independent review of the record.
II. Relevant Precedent
We begin with a review of First Amendment jurisprudence generally and the true threat doctrine specifically. The First Amendment, made applicable to the States through the Fourteenth Amendment, provides that "Congress shall make no law ... abridging the freedom of speech[.]" U.S. CONST. amend. I. "The hallmark of the protection of free speech is to allow free trade in ideas — even ideas that the overwhelming majority of people might find distasteful or discomforting." Virginia v. Black , 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (plurality) (internal quotations and citation omitted); see also Knox , 190 A.3d at 1154 ("First Amendment freedoms apply ... equally to cultured, intellectual expressions and to crude, offensive, or tawdry ones."). Naturally, then, "[a]s protector of this exchange of ideas, the First Amendment, as a general proposition, prevents government from proscribing speech ... because of disapproval of the ideas expressed." J.S. ex rel H.S. v. Bethlehem Area Sch. Dist. , 569 Pa. 638, 807 A.2d 847, 854 (2002) (internal quotations and citation omitted), abrogated by Knox , supra ; see also Texas v. Johnson , 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."). But even though the freedom of speech is "rightfully cherished" by the people and "jealously guarded" by the courts, it is not absolute. J.S. , 807 A.2d at 854. "From 1791 to the present," our society "has permitted restrictions upon the content of speech in a few limited areas, which 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.’ " R.A.V. v. City of St. Paul , 505 U.S. 377, 382-83, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), quoting Chaplinsky v. New Hampshire , 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Examples of types of speech which may be regulated if they are likely to inflict unacceptable harm include fighting words, see Chaplinsky ; incitement to imminent lawlessness, see Brandenburg v. Ohio , 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam ); obscenity, see Miller v. California , 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ; defamation, see New York Times Co. v. Sullivan , 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ; and child pornography, fraud, and other speech "integral to criminal conduct[.]" United States v. Alvarez , 567 U.S. 709, 717, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012). The prevention and punishment of these "certain well-defined and narrowly limited classes of speech ... have never been thought to raise any Constitutional problem." Chaplinsky , 315 U.S. at 571-72, 62 S.Ct. 766 ; see also Bose Corp. v. Consumers Union , 466 U.S. 485, 504, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (the "majestic protection" of the First Amendment does not extend to categories of speech that play no essential part of any exposition of ideas).
Speech which communicates a serious expression of intent to commit an act of unlawful violence against a particular individual or group of individuals — more commonly referred to as a "true threat" — is another "certain class of speech that the United States Supreme Court has determined is beyond the protective ambit of the First Amendment." J.S. , 807 A.2d at 856 ; see also R.A.V. , 505 U.S. at 388, 112 S.Ct. 2538 ("threats of violence are outside the First Amendment"). True threats are not covered by the umbrella of First Amendment protections due to the need to shield individuals "from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur[.]" R.A.V. , 505 U.S. at 388, 112 S.Ct. 2538. For these indisputably valid reasons, true threats are not immunized by the First Amendment, and the Constitution reserves for the States the right to determine whether "speech which threatens unlawful violence [should] subject the speaker to criminal sanction." Knox , 190 A.3d at 1155.
The true threat category of speech lies at the heart of this case. The United States Supreme Court first examined such speech in Watts v. United States , 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (per curiam ). Watts was attending a discussion group in Washington, D.C., during the Vietnam War, when the military draft was in effect. After someone suggested that young people become more educated before expressing their views, Watts responded:
They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. [(i.e. , United States President Lyndon Baines Johnson).]
Id . at 706, 89 S.Ct. 1399 (internal quotations omitted). Watts was convicted of threatening the President in violation of 18 U.S.C. § 871(a). On appeal, the High Court overturned Watts's conviction. Although the Court held the federal statute was facially valid in light of the overwhelming interest in physically protecting the President and allowing him to perform his duties without threat of violence, it further concluded Watts's conviction could be upheld only if his words conveyed an actual threat, as opposed to political hyperbole. Upon consideration of the full context of Watts's statement — including that it was made during a political debate; was conditioned on an event that Watts vowed would never occur (his induction into the military); and was greeted by laughter from the audience — the Court determined the statement was merely an expression of political dissent, rather than a true threat.
Following Watts , a number of courts, including this one, focused on contextual circumstances when evaluating whether a speaker's words constituted a true threat, utilizing an objective listener standard. For example, in J.S. , supra , an eighth-grade student, J.S., created a website from his home computer titled "Teacher Sux." The website contained derogatory, profane, offensive, and threatening comments about his algebra teacher. One page of the website set forth reasons why J.S. believed the teacher should face termination, while another page depicted her face as Adolf Hitler. Yet another page was captioned "Why Should She Die?" and included a request that viewers donate $20 "to help pay for the hitman." 807 A.2d at 851. The website was full of expletives and derogatory content regarding the teacher, including a drawing showing her in a decapitated state, with blood dripping from her neck. The teacher became aware of the website and believed the threats to be serious, such that she contacted local police and the F.B.I. Law enforcement declined to file charges, but the school district expelled J.S. He then appealed his expulsion to the court of common pleas, claiming it violated his First Amendment right to free speech because, inter alia , his speech did not constitute a true threat. The trial court affirmed, as did the Commonwealth Court, and we granted discretionary review.
Relying on various federal decisions we deemed consistent with Watts , we explained that, in determining whether speech falls within the definition of a true threat — "that is, if the communication is a serious expression of intent to inflict harm" — courts must "consider the statements, the context in which they were made, the reaction of listeners and others as well as the nature of the comments[.]" Id . at 858. We observed the statements and website were not communicated directly to the teacher, and, in fact, included a notice that school faculty should not view the website; there was no evidence that J.S. had made similar statements to the teacher on other occasions; and there was no evidence that the teacher, though distraught after viewing the website, "had any reason to believe that J.S. had the propensity to engage in violence, more than any other student of his age." Id . at 859. So we determined that, under the totality of those circumstances, J.S.’s speech was not a true threat; it was merely "a sophomoric, crude, highly offensive and perhaps misguided attempt at humor or parody" which "did not reflect a serious expression of intent to inflict harm." Id . In 2003, the United States Supreme Court again addressed the concept of a true threat in Black , supra . There, the Court examined a Virginia statute that made it unlawful to burn a cross in public or on another's property with the intent to intimidate any person or group. Significantly, the statute expressly identified the act of burning a cross as prima facie evidence of an intent to intimidate. The Virginia Supreme Court ruled the statute unconstitutional for two reasons: (1) it discriminated on the basis of content, in that it "selectively chooses only cross burning because of its distinctive message"; and (2) the statutory presumption of intent rendered the statute overbroad because the "enhanced probability of prosecution under the statute chills the expression of protected speech[.]" Black v. Commonwealth , 262 Va. 764, 553 S.E.2d 738, 744, 746 (2001). Upon review, a majority of the High Court determined that, while the statute did not violate the First Amendment insofar as it criminalized cross burning done with an intent to intimidate, the statutory presumption that the burning of a cross was prima facie evidence of an intent to intimidate a person or group of persons was unconstitutional under the First Amendment.
Two other observations regarding J.S. warrant brief mention. First, we focused considerable attention in that case to the "difficult jurisprudential task" of addressing "constitutional issues [that] intersect with the unique school setting." J.S. , 807 A.2d at 855. And we did so for good reason: the United States Supreme Court has "made clear that courts must apply the First Amendment ‘in light of the special characteristics of the school environment.’ " Mahanoy Area Sch. Dist. v. B.L. , ––– U.S. ––––, 141 S.Ct. 2038, 2044, 210 L.Ed.2d 403 (2021), quoting Hazelwood Sch. Dist. v. Kuhlmeier , 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) ; accord Tinker , 393 U.S. at 513, 89 S.Ct. 733 (schools have special interest in regulating speech that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others"). Here, though, our concern is not with school discipline but whether the elements of a criminal statute have been proved — it just so happens the speech that is criminalized under that statute was uttered by a student in a school. Thus, because this case involves a criminal statute, and the High Court has not suggested there is a different definition of true threats for juveniles versus adults, our decision herein should not be understood as relying to any degree on "the leeway the First Amendment grants to schools in light of their special characteristics[.]" Mahanoy Area Sch. Dist. , 141 S.Ct. at 2046. Cf. Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (students’ First Amendment rights in public school "are not automatically coextensive with the rights of adults in other settings").
Second, and relatedly, since J.S. was not subjected to prosecution pursuant to a criminal statute, we had no occasion in that case to address the "controversy regarding the type of intent that is required before one can be convicted." J.S. , 807 A.2d at 858 n.8. Of course, that is the issue we resolve presently.
In reaching the former holding, Justice O'Connor, in a portion of her lead opinion garnering a majority of the Court, observed:
"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, 89 S.Ct. 1399 ] ("political hyberbole" is not a true threat); R.A.V. v. City of St. Paul , [505 U.S. at 388, 112 S.Ct. 2538 ]. 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." [Id. ] 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. Respondents do not contest that some cross burnings fit within this meaning
of intimidating speech, and rightly so. As noted ..., the history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence.
Black , 538 U.S. at 359-60, 123 S.Ct. 1536. After prefacing its discussion with this passage — which, as will become apparent below, is subject to differing interpretations and is the source of much of the present dispute — the Court proceeded to reject the lower court's conclusion that the Virginia statute was unconstitutional because it discriminated on the basis of context and viewpoint. See id . at 363, 123 S.Ct. 1536 ("A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R.A.V. and is proscribable under the First Amendment.").
As for the separate issue of whether the statutory presumption that the burning of a cross was prima facie evidence of an intent to intimidate rendered the Virginia statute unconstitutionally overbroad, Justice O'Connor and three other Justices found that it did. The plurality explained that such a presumption "blurs the line" between constitutionally proscribable cross burnings intended to intimidate, and constitutionally protected cross burnings not intended to intimidate, such as those meant only as statements of ideology or group solidarity, those aimed only to anger but not intimidate, or those undertaken in a dramatic performance. Id . at 365, 123 S.Ct. 1536 ; see id . ("[T]he provision chills constitutionally protected political speech because of the possibility that the Commonwealth will prosecute — and potentially convict — somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect."). Therefore, the plurality concluded "the prima facie evidence provision, as interpreted through the jury instruction ... is unconstitutional on its face." Id . at 367, 123 S.Ct. 1536.
The plurality comprising this section of Justice O'Connor’s opinion — which included Chief Justice Rehnquist, Justice Stevens (who authored a separate concurring opinion), and Justice Breyer — noted the Virginia Supreme Court had not authoritatively interpreted the meaning of the prima facie evidence provision, and that it was "theoretically possib[le] that the court, on remand, could interpret the provision" in a manner that would avoid the constitutional deficiencies. Black , 538 U.S. at 367, 123 S.Ct. 1536. Justice Souter, in a concurring and dissenting opinion joined by Justices Kennedy and Ginsburg, agreed with the plurality that the prima facie evidence provision rendered the statute facially unconstitutional because it effectively eliminated the intent requirement, but disagreed with the plurality's suggestion that the Virginia Supreme Court could, on remand, interpret the provision in a different manner so as to save the statute from facial invalidity. Justice Scalia, joined in part by Justice Thomas, agreed that banning cross burning done with the intent to intimidate does not violate the First Amendment, though he would have allowed case-by-case challenges to convictions where the State was not required to prove intent, rather than invaliding the statute's prima facie provision outright. Finally, Justice Thomas took the position in dissent that because the statute applied only to conduct, not expression, it did not implicate any First Amendment concerns; and, even applying First Amendment principles, Justice Thomas saw no problem with the fact that the statute would allow a jury to draw an inference of intent to intimidate from the cross burning itself.
Nearly a dozen years after Black , in Elonis v. United States , 575 U.S. 723, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), the United States Supreme Court reinforced its view that a speaker's mental state is an essential consideration in determining whether a statement constitutes a true threat. Elonis had posted rap lyrics and other material on Facebook. The lyrics contained violent language and imagery regarding his wife, coworkers, and others, albeit interspersed with disclaimers indicating the lyrics were fictitious and had no intentional resemblance to real people. Eventually, Elonis was convicted of four counts of transmitting threats to injure in violation of 18 U.S.C. § 875(c). Before the High Court, he argued the district court erred in denying his request that the jury be instructed the government had to prove he intended to communicate a true threat.
The Supreme Court observed the federal statute under which Elonis was convicted was "meant to proscribe a broad class of threats ... but did not identify what mental state, if any, a defendant must have to be convicted." Elonis , 575 U.S. at 734, 135 S.Ct. 2001. The Court concluded Elonis's conviction could not stand because it was "premised solely on how his posts would be understood by a reasonable person[,]" and such a standard is "inconsistent with ‘the conventional requirement for criminal conduct — awareness of some wrongdoing.’ " Id . at 737-38, 135 S.Ct. 2001 (citation omitted and emphasis in original). The Court further explained: "Having liability turn on whether ‘a reasonable person’ regards the communication as a threat — regardless of what the defendant thinks — ‘reduces culpability on the all-important element of the crime to negligence,’ and we ‘have long been reluctant to infer that a negligence standard was intended in criminal statutes[.]’ " Id . at 738, 135 S.Ct. 2001 (citations omitted). Notably, since the parties did not brief or argue the issue of whether a finding of recklessness would suffice to sustain a conviction under Section 875(c), the Court did not resolve that specific question.
Since Black , courts have disagreed regarding whether — in order for a statement to constitute an unprotected true threat — the speaker must merely intend to communicate the statement or whether the speaker must also intend that the statement be interpreted by the recipient as a serious expression of an intent to commit an act of unlawful violence. More simply stated, does the speaker's subjective intent to intimidate matter when determining whether particular speech constitutes an unprotected true threat? Like we did in J.S. many years earlier, we pointedly recognized the absence of consensus on this issue in Knox .
Knox created a rap music video in which he threatened certain city police officers by name. After a third party posted the video to the internet, the Commonwealth charged and convicted Knox of terroristic threats under Section 2706(a)(1). On appeal, prior to analyzing whether the video constituted a true threat, we observed:
Some [courts] have continued to use an objective, reasonable-person standard. These courts interpret Black ’s intent requirement as applying to the act of transmitting the communication. See United States v. Clemens , 738 F.3d 1, 11 (1st Cir. 2013) (citing cases). In their view, an objective standard remains appropriate for judging whether the speech, taken in its full context, embodies a serious expression of an intent to commit unlawful violence. They reason from the premise that the First Amendment traditionally lifts its protections based on the injury inflicted rather than the speaker's guilty mind. See , e.g. , United States v. Jeffries , 692 F.3d 473, 480 (6th Cir. 2012), abrogation on other grounds recognized by United States v. Houston , 683 Fed.Appx. 434, 438 (6th Cir. 2017) ; United States v. White , 670 F.3d 498, 508-09 (4th Cir. 2012), abrogated on other grounds by United States v. White , 810 F.3d 212, 220 (4th Cir. 2016).
Other courts have read Black as implying that the First Amendment only allows
the government to penalize threatening speech uttered with the highest level of scienter, namely, a specific intent to intimidate or terrorize. See United States v. Cassel , 408 F.3d 622, 632-33 (9th Cir. 2005) ; but cf. Fogel v. Collins , 531 F.3d 824, 831 (9th Cir. 2008) (observing that the Ninth Circuit has not consistently followed a subjective-intent standard). Still others have charted something of a middle course, suggesting that "an entirely objective definition [of a true threat] is no longer tenable" after Black , while reserving judgment on whether the standard should be subjective only, or a subjective-objective combination pursuant to which a statement "must objectively be a threat and subjectively be intended as such." United States v. Parr , 545 F.3d 491, 500 (7th Cir. 2008) (emphasis in original).
Knox , 190 A.3d at 1156.
We acknowledged in Knox that, pursuant to the High Court's decision in Black , "an objective, reasonable-listener standard such as that used in J.S. is no longer viable for purposes of a criminal prosecution pursuant to a general anti-threat enactment." Id . at 1156-57. We recognized that "the First Amendment necessitates an inquiry into the speaker's mental state[,]" noting that the Justices in Black who found the Virginia statute's presumption to be constitutionally problematic appeared to focus on "values and concerns associated with the First Amendment: the social undesirability of suppressing ideas, punishing points of view, or criminalizing statements of solidarity or ideology." Id . at 1157. We further opined that, "[c]onstruing the [ Black ] Court's discussion of the speaker's intent as pertaining solely to the act of transmitting the speech appears difficult to harmonize with" its remark that " ‘[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.’ " Id . (emphasis in original), quoting Black , 538 U.S. at 360, 123 S.Ct. 1536.
While acknowledging that the High Court had expressly left open the question of "whether a statute which criminalizes threatening statements spoken with a lower scienter threshold, such as knowledge or reckless disregard of their threatening nature, can survive First Amendment scrutiny[,]" id . at 1157 n.10, we deduced two specific principles from Black : "First, the Constitution allows [S]tates to criminalize threatening speech which is specifically intended to terrorize or intimidate. Second, in evaluating whether the speaker acted with an intent to terrorize or intimidate, evidentiary weight should be given to contextual circumstances such as those referenced in Watts ." Id . at 1158 (footnote omitted). These contextual factors include whether the threat was conditional, whether it was communicated directly to the victim, whether the victim had reason to believe the speaker had a propensity to engage in violence, and how listeners reacted to the speech. See id .
Applying these principles to the rap video in Knox , we observed Knox's threats were mostly unconditional; the officer who first viewed the video immediately notified police personnel, suggesting he did not view the video as satire or social commentary; and the officers named in the video were concerned for their safety and took measures to avoid becoming victims of violence. We determined the fact the video was not communicated directly to the police, but had been uploaded to the internet by a third party, did not negate an intent by Knox that it would be viewed by the officers. Ultimately, we concluded Knox's video demonstrated a subjective intent on his part to terrorize or intimidate the police officers, such that it constituted a true threat. Thus, we upheld Knox's terroristic threats conviction under Section 2706(a)(1).
Justice Wecht authored a concurring and dissenting opinion in Knox , joined by Justice Donohue, in which he agreed with the majority that Black rendered the previously applied objective reasonable-listener standard for determining whether speech was a true threat no longer viable. See Knox , 190 A.3d at 1161 (Wecht, J., concurring and dissenting). Justice Wecht further agreed with the majority's conclusion that "an assessment of the speaker's subjective intent" is necessary in determining whether speech constituted a true threat, and he joined the majority in affirming Knox's conviction. However, Justice Wecht disagreed with the majority's decision not "to consider the more important question of whether the First Amendment requires proof of specific intent, or whether the [First] Amendment would tolerate punishment of speech based upon proof of only a lesser mens rea such as recklessness or knowledge" — and he then proceeded to supply his answer to that question. Id . at 1162 (emphasis in original). In contrast, the Knox majority found it unnecessary in that case to consider whether a conviction based on a lower mens rea would violate the First Amendment, given its conclusion the evidence was sufficient to support a finding Knox acted with subjective intent to terrorize and intimidate.
III. Arguments
Cognizant of these relevant precedents, we now consider the parties’ arguments. The thrust of appellant's position is that a standard of "reckless disregard, rather than subjective intent, is not and cannot be narrowly tailored to protect an individual's right to free speech in balance with the government's interest to protect others from the fear of violence." Appellant's Brief at 31. Appellant maintains that allowing a conviction (or, as here, an adjudication of delinquency) for terroristic threats under Section 2706(a)(3) based merely upon a showing of recklessness will require individuals to speculate as to how others will perceive their speech, potentially casting too wide a net and criminalizing permissible speech. See, e.g. , In the Interest of R.D. , 464 P.3d 717, 733-34 (Colo. 2020) ("[W]hether a particular reader or listener will react with fear to particular words is far too unpredictable a metric for First Amendment protection. Such a rule would not give sufficient ‘breathing space’ to the freedom of speech."). Appellant asserts this lower standard of scienter is particularly problematic when applied to adolescents and teenagers, whose acuity of others’ perception may not be fully developed because they lack maturity and experience. Along these lines, appellant suggests our decision in J.S. — where we concluded J.S.’s statements, taken as a whole, were "sophomoric, crude, highly offensive and perhaps [a] misguided attempt at humor or parody" but "did not reflect a serious expression of intent to inflict harm[,]" J.S. , 807 A.2d at 859 — supports his position that a finding of subjective intent by the speaker to cause fear is necessary in order for speech to constitute a true threat.
The American Civil Liberties Union of Pennsylvania ("ACLU") filed an amicus curiae brief in support of appellant, elaborating on many of these same points. See, e.g. , ACLU's Brief at 2 (arguing against permitting "a lower standard for intent in the context of [Section 2706 ] for statements made in school settings because of the well-documented differences between teenagers and adults"). Notably, the ACLU, like appellant, argues that reckless speech "is more akin to negligent speech than to any threat made with the intent or knowledge that the statement would be deemed a threat." Id . at 8; accord Appellant's Brief at 30 (characterizing recklessness as "almost akin to negligence").
Appellant also attacks the Superior Court's decision below, asserting it "appears to have been driven by an objective reasonable [listener] standard and a singular context, [i.e. ,] the prevalence of school shootings within the United States." Appellant's Brief at 17. In appellant's view, the lower court's focus should have been on his subjective state of mind, and he suggests its ruling conflicts with the United States Supreme Court's decision in Watts , which, like this case, involved speech made during a period of national concern regarding widespread violence. Appellant posits that — in light of the fact that Watts's statement was made shortly after the assassinations of President John F. Kennedy, Martin Luther King, Jr., and Senator Robert F. Kennedy, as well as the riots at the Democratic Convention in Chicago in 1968 — if the High Court in Watts had been "solely contextually and objectively driven by the reasonable person standard for either speaker or recipient in its analysis," it likely would have determined that Watts's statement was a true threat that was not entitled to First Amendment protection. Id .
Beyond drawing this parallel, appellant emphasizes the Knox Court concluded that, although a true threat falls outside the protection of the First Amendment, the determination of whether particular speech constitutes a true threat requires an evaluation of whether the speaker acted with intent to terrorize or intimidate, while also considering the contextual circumstances. Moreover, appellant urges us to embrace the two-prong approach articulated by Justice Wecht in his concurring and dissenting opinion in Knox . That suggested approach would require reviewing courts to: (1) "conduct an objective analysis to determine whether reasonable recipients would consider the statement to be a serious expression of intent to inflict harm, and not merely jest, hyperbole, or a steam valve"; and (2) "conduct a subjective analysis to ascertain whether the speaker specifically intended to intimidate the victim or victims, or intended his expression to be received as a threat to the victim or victims." Knox , 190 A.3d at 1165 (Wecht, J., concurring and dissenting) (internal citation and quotations omitted). Failure to satisfy either prong, under this theory, would remove the speech from First Amendment protection.
As a final point, appellant contrasts the contextual circumstances surrounding his statements from those in J.S. and Knox . He submits his first statement — that he "doesn't think people deserve to live and everyone should just die[,]" N.T. Hearing, 4/26/2018 at 22 — expressed only an opinion, not a threat. And he contends his second statement — that he "wanted to beat the record of 19[,]" id . at 14 — was vague and ambiguous. In this vein, appellant highlights that neither statement was communicated to a specific person or group of people; there was no evidence that, at the time he made his second statement, he was personally aware of the recent Parkland shooting; there was no evidence he had a propensity to engage in violence; and, finally, the other students’ reactions were based on their own knowledge of the Parkland shooting and their subjective perspectives. Thus, appellant concludes his statement did not constitute a true threat, even when viewed under the standards set forth in J.S. and Knox .
In response, the Commonwealth concedes that, in accordance with Knox , to be properly convicted of making a true threat, "a defendant's mental state must go beyond mere negligence." Commonwealth's Brief at 19. The Commonwealth further recognizes the contextual factors that must be considered when determining if speech constitutes a true threat: whether it was conditional; whether it was communicated directly to the victim; whether the victim had reason to believe the speaker had a propensity to engage in violence; and how the listeners reacted to the speech. However, the Commonwealth argues, the true threat exception is intended to protect against not only actual violence, but the fear of violence and the disruption that such fear creates. As the Commonwealth sees it, when appellant's speech is evaluated in context, it "was more than enough to constitute a ‘true threat.’ " Id .; see id . at 20-21 (explaining that appellant's statement that he "wanted to beat the record of 19" was unconditional and made in a school hallway, loudly enough for others to hear; appellant "had presented himself as someone interested in death"; and his statement frightened K.S. and M.W., particularly since it was made "in the wake of a ‘record’ school shooting in the news").
The Commonwealth also takes issue with the attempt by appellant and his amicus to "conflat[e] recklessness and negligence[.]" Id . at 24. From the Commonwealth's perspective, the separate opinions authored by Justices Alito and Thomas in Elonis are "instructive" on this point. Id . at 25. Taking Justice Alito's concurring and dissenting opinion first, the Commonwealth opines that he "correctly argued that recklessness was an appropriate mens rea for a true threat." Id ., citing Elonis , 575 U.S. at 745-46, 135 S.Ct. 2001 (Alito, J., concurring and dissenting) ("There can be no real dispute that recklessness regarding a risk of serious harm is wrongful conduct. ... Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct."). The Commonwealth finds further support in Justice Thomas's dissenting opinion, suggesting it demonstrates, "historically, the First Amendment has not required a mens rea of specific intent that a particular victim be harmed." Id . at 26, citing Elonis , 575 U.S. at 755, 135 S.Ct. 2001 (Thomas, J., dissenting) ("At a minimum, there is no historical practice requiring more than general intent when a statute regulates speech.").
Finally, referencing the Knox Court's recognition of the conflicting interpretations of Black , the Commonwealth contends appellant's proposed standard — which would require the government "to prove that a defendant intentionally and specifically directed a terroristic threat to a particular victim" — has been adopted only by a minority of courts. Id . at 28. In fact, the Commonwealth underscores, some courts "still maintain limited mens rea requirements[,]" requiring no subjective intent or, alternatively, "a more general reasonable person test, with no specific reliance upon either the speaker or the listener." Id . at 27-28 (internal citation and quotations omitted); see id . (collecting cases).
The Pennsylvania District Attorneys Association ("PDAA"), in its amicus brief, echoes in principal respect the arguments raised by the Commonwealth.
IV. Analysis
As earlier noted, we granted discretionary review in this case to resolve a pointed issue: "Whether the Superior Court misapprehended controlling facts, in a case of first impression in this Commonwealth, when concluding that the terroristic threats statute, requiring only a conviction based upon recklessness, did not violate [appellant]’s First Amendment right under the United States Constitution to free speech?" J.J.M. , 228 A.3d 487. This presents a mixed question of fact and law, so "we defer to the trial court's fact findings which are supported by competent evidence and resolve any legal questions, such as the scope of the true-threat doctrine, de novo ." Knox , 190 A.3d at 1152. We also emphasize, as a preliminary matter, the strong presumption in the law that legislative enactments do not violate the Constitution. See, e.g. , Commonwealth v. Mayfield , 574 Pa. 460, 832 A.2d 418, 421 (2003) (we presume " ‘the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth’ "), quoting 1 Pa.C.S. § 1922(3). For that reason, there is a heavy burden of persuasion upon one who challenges the constitutionality of a statute, and we will not declare the provision unconstitutional "unless it clearly, palpably, and plainly violates the Constitution; all doubts are to be resolved in favor of a finding of constitutionality." Id . (internal citation omitted).
As the precise question upon which we granted review is plainly framed in terms of the First Amendment, we consequently do not consider any separate potential issue arising under the Pennsylvania Constitution. See PA. Const. art. I, § 7 ("The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak ... on any subject, being responsible for the abuse of that liberty.").
A.
Mindful of this high bar, and upon careful review of all relevant authority and the parties’ cogent arguments, we agree with the Superior Court, the Commonwealth, and the PDAA that the First Amendment does not prohibit the States from criminalizing threats made in reckless disregard of the risk of causing fear. It necessarily follows, then, that there is no Constitutional problem with the fact that Section 2706(a)(3) of the Crimes Code permits a conviction for terroristic threats, i.e. , a true threat, even in the absence of any specific intent to intimidate by the speaker. Rather, we conclude it is enough, to survive First Amendment scrutiny, that the statute requires proof of a conscious disregard of a substantial and unjustifiable risk of terrorizing or intimidating others.
We begin by dispatching the notion, embraced by the concurrence and many (if not all) of those courts that have ruled in a manner consistent with appellant's position, that the United States Supreme Court decided this issue in Black . See State v. Boettger , 310 Kan. 800, 450 P.3d 805, 815 (2019) ("We conclude a majority of the Black Court determined an intent to intimidate was constitutionally, not just statutorily, required."); United States v. Heineman , 767 F.3d 970, 978 (10th Cir. 2014) ("We 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.") (emphasis in original); United States v. Cassel , 408 F.3d 622, 631 (9th Cir. 2005) (the "clear import" of Black "is that only intentional threats are criminally punishable consistently with the First Amendment") (emphasis in original). Respectfully, we disagree with this assessment.
Those courts concluding the First Amendment protects threats to commit violence unless the speaker specifically intended to place the victim in fear all seem to have relied, in substantial part, upon three statements from a passage of Black that garnered majority support. The first is that " ‘[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." Black , 538 U.S. at 359, 123 S.Ct. 1536. Second is the statement that "[t]he speaker need not actually intend to carry out the threat." Id . at 359-60, 123 S.Ct. 1536. And the third is that intimidation "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 of death." Id . at 360, 123 S.Ct. 1536. These statements, as interpreted by the concurrence and this minority of other courts, compel "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." Cassel , 408 F.3d at 631 (emphasis in original). As we read them, however, none of these statements, whether taken individually or collectively, can bear the constitutional weight the concurrence and these other courts have ascribed to them.
Regarding the first statement above, we find it significant that the Black Court said only that true threats "encompass" — i.e. , include — threats intended to be interpreted as such, without necessarily excluding other kinds of expression. It would be a curious matter indeed for the Court to use this open-ended phrase if it actually meant to provide the sole definition of a true threat. The Court might have limited and circumscribed its definition by stating "True threats encompass only ..." or "True threats consist of ...," or something to similar effect. Moreover, we previously noted elsewhere that the Black Court had good reason to purposely use broad language to describe what constitutes an unprotected true threat. See Knox , 190 A.3d at 1157 n.10 (remarking the Black majority's use of open-ended language was "understandable as there was no need in that particular case to decide whether First Amendment protections fall away only when there is a specific intent to intimidate") (emphasis in original). Hence, this first statement is of limited significance to our inquiry.
Moving to the next statement, that "[t]he speaker need not actually intend to carry out the threat[,]" Black , 538 U.S. at 359-60, 123 S.Ct. 1536, we reiterate again that only intentional threats were at issue in Black . See id . at 348, 123 S.Ct. 1536 (explaining the challenged statute proscribed cross burnings carried out " ‘with the intent of intimidating’ " a person or group), quoting Va. Code § 18.2-423. Since the Black Court's entire discussion necessarily presupposed a specific intent to terrorize, its clarification that there need not be an intent to act on the threat is of little import in the present matter.
Finally, we also find the Court's statement that intimidation "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, 123 S.Ct. 1536, to be of no legal consequence here. That sentence is best read as describing one "type of true threat," not the only type. It thus does nothing to aid appellant's position.
In short, we disagree with the concurrence and those courts that have concluded Black is dispositive, or even particularly instructive, as it pertains to the specific issue we confront in this appeal. From our respectful point of view, the concurrence and that minority of courts have simply read too much into Black . Instead, as we alluded in Knox , we are more persuaded by those judicial statements expressing the position that Black did not " ‘address[ ] whether the First Amendment requires a particular mental state for threat prosecutions.’ " Knox , 190 A.3d at 1157 n.10, quoting Elonis , 575 U.S. at 765, 135 S.Ct. 2001 (Thomas, J., dissenting). On a related score, while we are aware Justices Thomas and Alito have already indicated their apparent position on this issue — with the former going so far as to suggest that "[l]ower courts ... can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement," Elonis , 575 U.S. at 750, 135 S.Ct. 2001 (Thomas, J., dissenting) — we also observe that at least one other member of the Court has undermined Justice Thomas's prediction. See Perez v. Florida , ––– U.S. ––––, 137 S.Ct. 853, 854-55, 197 L.Ed.2d 480 (2017) (Sotomayor, J., concurring in the denial of certiorari ) (suggesting recklessness would not be a sufficiently culpable state of mind to separate punishable conduct from protected speech). And so, in the absence of a definitive instruction from the High Court, and because it is clear the Justices are not of one mind on the issue, we must chart our own course.
The full quote from this portion of Justice Thomas's dissent in Elonis , which we repeated with approval in Knox , also opined that Watts is not determinative of the precise issue presented here. Notably, the Watts Court remarked it had "grave doubts" about the Seventh Circuit's construction of "willfully" in the presidential threats statute. Watts , 394 U.S. at 708, 89 S.Ct. 1399. Some, most notably Justice Sotomayor, have cited this statement to support the argument that, "[t]ogether, Watts and Black ... strongly suggest that ... a jury must find that the speaker actually intended to convey a threat." Perez v. Florida , ––– U.S. ––––, 137 S.Ct. 853, 855, 197 L.Ed.2d 480 (2017) (Sotomayor, J., concurring in the denial of certiorari ). Again, however, our own views align more closely with Justice Thomas's on this point. See Elonis , 575 U.S. at 765, 135 S.Ct. 2001 (Thomas, J., dissenting) (" ‘grave doubts’ do not make a holding, and that stray statement in Watts is entitled to no precedential force"); see also Kansas v. Boettger , ––– U.S. ––––, 140 S.Ct. 1956, 1958, 207 L.Ed.2d 1089 (2020) (Thomas, J., dissenting from the denial of certiorari ) ("[N]one 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.").
We now return to the definition of the crime. Appellant was adjudicated delinquent under Section 2706(a)(3) of the Crimes Code. That statute provides that a person commits the crime of terroristic threats if he or she communicates, either directly or indirectly, a threat to cause serious public inconvenience, or causes terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience. See 18 Pa.C.S. § 2706(a)(3). Reckless disregard in this context entails "consciously disregard[ing] a substantial and unjustifiable risk" that the speech at issue will have a threatening or terrorizing effect, where the risk is of such a nature that "its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation." 18 Pa.C.S. § 302(b)(3).
Importantly, this Court has explained that recklessness "aligns ... more closely with intentional conduct" than negligence. Tayar v. Camelback Ski Corp ., 616 Pa. 385, 47 A.3d 1190, 1201 (2012). Negligence suggests accident or mere inadvertence, but recklessness denotes " ‘an extreme departure from ordinary care, a wanton or heedless indifference to consequences, an indifference whether or not wrong is done, and an indifference to the rights of others.’ " Id ., quoting 57A AM. JUR.2d Negligence § 274. We recently reaffirmed that understanding, expressing that "reckless conduct subsumes conscious behavior." Commonwealth v. Johnson , ––– Pa. ––––, 231 A.3d 807, 826 (2020).
In the present context, it is the risk of fear, terror, and intimidation, inherent to the threat itself, which is consciously disregarded by the reckless speaker. Even though the speaker may not specifically intend the prohibited result, he contemplates its substantial risk and chooses to ignore it. See Elonis , 575 U.S. at 745-46, 135 S.Ct. 2001 (Alito, J., concurring and dissenting) ("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."). This knowing disregard of the potential harmful effects of the speech, see R.A.V. , 505 U.S. at 388, 112 S.Ct. 2538 (threats of violence tend to instill a fear of violence, which in turn tends to disrupt the victim's life); accord Commonwealth v. Jackson , 215 A.3d 972, 981 (Pa. Super. 2019) (the harm which anti-threat statutes seek to avoid "is the psychological distress that follows an invasion of the victim's sense of personal security"), is more akin to a specific intent to threaten or terrorize than a state of mind characterized by carelessness. It stands to reason, then, that reckless speech as envisioned by Section 2706(a)(3) is morally culpable, and imposing criminal liability upon one who makes a reckless threat does not run afoul of the First Amendment.
We find significant support for this conclusion in the fact that the High Court has, in other First Amendment contexts, recognized recklessness is a sufficient mens rea to render speech proscribable. For example, in Garrison v. Louisiana , 379 U.S. 64, 75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), the Court determined "false statement[s] made with reckless disregard of the truth[ ] do not enjoy constitutional protection" in criminal libel. The Court reached a similar conclusion with regard to civil libel. See New York Times Co. , 376 U.S. at 279-80, 84 S.Ct. 710 (holding a public official may recover damages for defamatory falsehoods spoken with actual malice, that is, with knowledge that they were false "or with reckless disregard" for their truth or falsity); see also Am. Future Sys., Inc. v. Better Business Bureau of E. Pa. , 592 Pa. 66, 923 A.2d 389, 400 (2007) (reciting that an even lower scienter such as ordinary negligence is constitutionally sufficient for liability relative to private-figure plaintiffs where the defamatory speech does not relate to a matter of public concern). As well, the High Court has held that one may be convicted of mailing obscenity under the First Amendment without proof he knew the materials were legally obscene, and thus without a specific intent to mail obscenities. See Hamling v. United States , 418 U.S. 87, 120, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). Nor has it expressed any problem with criminally punishing reckless possession of visual depictions of child pornography. See Osborne v. Ohio , 495 U.S. 103, 112 n.9, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990).
In all of these cases involving other categories of unprotected speech, the United States Supreme Court determined the Constitution allowed prosecutions based on a scienter below intentionality. And, at the same time, we are unaware of a single case in which the Court has held that recklessness is an insufficient mens rea to separate constitutionally protected speech from that which is proscribable. We see no reason why threats to commit violence should be the category for which we break that new ground. In fact, doing so would lead to an undeniably perverse result: It would "give threats pride of place among unprotected speech." Elonis , 575 U.S. at 767, 135 S.Ct. 2001 (Alito, J., concurring and dissenting); see also id . at 766, 135 S.Ct. 2001 (Thomas, J., dissenting) (requiring heightened mental state "would make threats one of the most protected categories of unprotected speech, thereby sowing tension throughout [the High Court's] First Amendment doctrine.").
If still more support for our position that recklessness may be punished in this context were required, history provides it. As Justice Thomas recently opined:
It does not appear that the ratifiers of the First or Fourteenth Amendments understood the freedom of speech to protect reckless threats. In 1754, Parliament passed a statute making it a crime to "knowingly send any Letter without 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 demanded." 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 respect to the actus reus of the crime." Carter v. United States , 530 U.S. 255, 268, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000). As the trial court instructed 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. Girdwood , 1 Leach 142, 143, 168 Eng. Rep. 173 (1776). Only "if 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. [Id .] The Court of Crown approved this instruction. [Id .], 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 "copies" of this statute between the founding and Reconstruction. Elonis , supra , at 761, 135 S.Ct. 2001 (Thomas, J., dissenting). New Jersey, for example, made it a crime to "knowingly send or deliver any letter or writing, with or without a name subscribed thereto, or signed with a fictitious name, ... threatening 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[.] ... 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 General 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, 7 L.Ed. 327 (1829) ; see also Elonis , supra , at 760–763, 135 S.Ct. 2001 (Thomas, J., dissenting). The prevalence of statutes from the founding through Reconstruction that did not require intent to intimidate provides strong evidence of the meaning of the freedom of speech protected by the Fourteenth Amendment.
This evidence is reinforced by the fact that many of these States also guaranteed the freedom of speech in their constitutions. ... If statutes criminalizing 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, 37 S.W. 123, 126 (1896).
Boettger , 140 S.Ct. at 1957-58 (Thomas, J., dissenting from the denial of certiorari ).
Notably, unlike "the Federal Government[, which] apparently did not get into the business of regulating threats until 1917," Elonis , 575 U.S. at 760, 135 S.Ct. 2001 (Thomas, J., dissenting), Pennsylvania has been doing so since at least the mid-19th century. Similar to other early statutes of its kind, Pennsylvania's made it a crime to "knowingly ... send, deliver or utter any letter or writing threatening to kill or murder any other person, or to burn or destroy any coal breaker, house, barn or other building, or any rick or stack of grain, hay or straw, or other agricultural produce[.]" Act of 1860, Mar. 31, Section 23, P.L. 382. This statute, an effective copy "of a 1754 English threat statute subject to only a general-intent requirement[,]" "penalize[d] transmitting a communication containing a threat without proof of a demand to extort something from the victim." Elonis , 575 U.S. at 761, 135 S.Ct. 2001 (Thomas, J., dissenting).
A provision explicitly requiring proof of a specific "intent to extort" appeared alongside this law. See Act of 1860, Mar. 31, Section 23, P.L. 382 ("If any person shall knowingly send or deliver, or utter to any other person, any letter or writing accusing or threatening to accuse either the person to whom such letter or writing shall be sent or delivered, or any other person of any crime or misdemeanor punishable by law with imprisonment at labor, with a view or intent to extort or gain ... any property, money, security or other valuable thing from any person whatsoever ...") (emphasis added). We find it telling that the statute expressly incorporated an intent component with respect to one manner of committing the offense, yet simultaneously omitted such a requirement with respect to threats to commit violence.
In our view, the very existence of this early Pennsylvania threat statute, which "did not require intent to intimidate[,] provides strong evidence of the meaning of the freedom of speech[.]" Boettger , 140 S.Ct. at 1957-58 (Thomas, J., dissenting from the denial of certiorari ). This is particularly so since the freedom of speech has "been guaranteed since the first Pennsylvania Constitution, not simply as [a] restriction[ ] on the powers of government, as found in the Federal Constitution, but as [an] inherent and ‘invaluable’ right[ ] of man." Commonwealth v. Tate , 495 Pa. 158, 432 A.2d 1382, 1388 (1981). Our research has uncovered nothing to indicate the courts in this Commonwealth ever considered the statute to require more than general intent, or that the absence of a heightened mental state was somehow repugnant to our own Charter, which places the freedom of speech on the highest of pedestals. Cf . Boettger , 140 S.Ct. at 1958 (Thomas, J., dissenting from the denial of certiorari ) ("If statutes criminalizing reckless threats violated the freedom of speech, one would expect these States not to have such laws ... [or, a]t the very least, one would expect state courts to hold such laws unconstitutional, but it appears that none did."). This relevant history fortifies our determination that the First Amendment has limited application to general anti-threat statutes, including those requiring only a mental state of recklessness.
There is still more support for our interpretation of the First Amendment. For one thing, a holding that proof of a specific intent to terrorize is affirmatively required under the First Amendment inevitably would also decide that a "knowingly" scienter is constitutionally inadequate for prosecution under a general anti-threat statute. See 18 Pa.C.S § 302(b)(2) (defining the "knowingly" mens rea in terms of the actor's awareness that his conduct will almost certainly cause the undesirable result). In other words, if we were to interpret the First Amendment in the manner appellant and the concurrence suggest, and as only a few courts have done, it would, as a necessary consequence, also extend the First Amendment's protective shield to threatening speech uttered with certainty that it will terrorize and intimidate the victim, so long as that was not the speaker's subjective purpose. We are highly skeptical the First Amendment mandates this result. Additionally, we observe our decision here places us squarely within the majority of jurisdictions to have considered this issue. For example, in Major v. State , 301 Ga. 147, 800 S.E.2d 348 (2017), the Georgia Supreme Court rejected a First Amendment challenge to its reckless criminal threat statute, Former O.C.G.A. § 16-11-37(a). The court held that because "recklessness requires a knowing act — i.e. , conscious disregard of a substantial risk — it fits within the definition of a true threat." 800 S.E.2d at 351 (emphasis in original). Likewise, the Connecticut Supreme Court, after explaining it was "persuaded by the reasoning of the courts that have concluded that Black did not adopt a subjective intent standard[,]" upheld the reckless portion of its own criminal threat statute, C.G.S. § 53a-62(a)(2)(B). State v. Taupier , 330 Conn. 149, 193 A.3d 1, 18 (2018). Still other state courts of last resort have similarly resisted invitations to interpret the First Amendment in a manner that would jeopardize their criminal threat statutes forbidding threats communicated in reckless disregard of the risk of causing terror. See, e.g. , State v. Trey M. , 186 Wash.2d 884, 383 P.3d 474, 481 (2016) ("nothing in Black imposes in all cases an ‘intent to intimidate’ requirement in order to avoid a First Amendment violation"); People v. Lowery , 52 Cal.4th 419, 128 Cal.Rptr.3d 648, 257 P.3d 72, 77 (2011) ("the category of threats that can be punished by the criminal law without violating the First Amendment includes but is not limited to threatening statements made with the specific intent to intimidate") (emphasis omitted); Hearn v. State , 3 So.3d 722, 739 n.22 (Miss. 2008) ("[t]he protected status of threatening speech is not based upon the subjective intent of the speaker"). And, as we expounded in Knox (and as the Commonwealth reminds us here), a significant number of state and federal courts have staked an even broader position, in that they believe an "objective standard remains appropriate for judging whether the speech, taken in its full context, embodies a serious expression of an intent to commit unlawful violence." Knox , 190 A.3d at 1156 (discussing cases). We declined to go that far in Knox , and we remain unwilling to join those courts that fall on the far other end of the spectrum and impose, as a matter of constitutional law, a specific intent-to-threaten requirement for threat statutes like Section 2706. Rather, our holding today places us somewhere in the middle of these extremes.
Indeed, as we observed in Knox , where we candidly foretold we "are not fully aligned with the Ninth Circuit's view that, under Black , a specific intent to threaten is the sine qua non of a constitutionally punishable threat[,]" anti-threat statutes that criminalize conduct with a knowing means rea "are not uncommon." Knox , 190 A.3d at 1157 n.10 (internal quotations and citation omitted), citing, e.g. , 18 Pa.C.S. § 4952(a) (penalizing threats communicated with a "knowing" mens rea ).
As far as we can tell, at least seven other States also have statutes that criminalize threats made "knowingly." See Colo. Rev. Stat. Ann. § 18-3-206 (menacing); Colo. Rev. Stat. Ann. § 18-3-602(1)(a) (stalking); Md. Code Ann., Crim. Law § 3-1001(b) (threats of crimes of violence); Me. Rev. Stat. tit. 17-A, § 209(1) (criminal threatening); Tex. Penal Code Ann. § 22.01(a)(2) (assault); Vt. Stat. Ann. tit. 13, § 1702(a)(1)-(2) (criminal threatening); Wash. Rev. Code Ann. § 9A.46.020(1)(a) (harassment); W.Va. Code Ann. § 61-6-24(b) (threats of terrorist acts).
Of course, far more States — fifteen others, by our count — have laws with a criminal provision that, like Section 2706(a)(3), tracks the Model Penal Code and criminalizes threats made in reckless disregard of their potential to instill fear. See Alaska Stat. Ann. § 11.56.810(a)(1)(A) (terroristic threatening); Ariz. Rev. Stat. Ann. § 13-1202(A)(2) (threatening or intimidating); Conn. Gen. Stat. Ann. § 53a-62(a)(2)(B) (second degree threatening); Del. Code Ann. tit. 11, § 621(a)(2)(c) (terroristic threatening); Ga. Code Ann. § 16-11-37(b)(2)(D) (terroristic threat); Haw. Rev. Stat. Ann. § 707-715(2) (terroristic threatening); Kan. Stat. Ann § 21-5415 (criminal threat); Minn. Stat. Ann. § 609.713 (threats of violence); Mo. Ann. Stat. § 574.120 (second degree making a terrorist threat); N.H. Rev. Stat. Ann. § 631:4(I)(e), (f) (criminal threatening); N.D. Cent. Code Ann. § 12.1-17-04 (terrorizing); N.J. Stat. Ann. § 2C:12-3(a) (terroristic threats); Neb. Rev. Stat. Ann. § 28-311.01(1)(c) (terroristic threats); Wisc. Stat. Ann. § 947.019(1)(e) (terroristic threats); Wyo. Stat. Ann. § 6-2-505(a) (terroristic threats). We do not take lightly the prevalence of such statutes throughout the country, none of which could stand if the First Amendment truly imposed a specific intent-to-threaten requirement.
To summarize, in Knox we resolved that "the First Amendment necessitates an inquiry into the speaker's mental state" when dealing with general anti-threat statutes. Id . at 1157. But we expressly left open the question "whether a statute which criminalizes threatening statements spoken with a lower scienter threshold, such as knowledge or reckless disregard of their threatening nature, can survive First Amendment scrutiny." Id . at 1157 n.10. For the reasons set forth at length throughout this opinion, we now hold it can. As we see it, recklessness — which, to reiterate, entails a conscious disregard by the speaker of a substantial and unjustifiable risk that his speech will have a threatening or terrorizing effect — is a culpable mental state more analogous to intentional conduct than carelessness. We thus conclude "the government has the right, if not the duty, to ‘protect[ ] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur,’ all of which places [reckless threats] ‘outside the First Amendment.’ " Jeffries , 692 F.3d at 478, quoting R.A.V. , 505 U.S. at 388, 112 S.Ct. 2538 (additional citations omitted).
Although we are confident in our conclusions in this regard, we nevertheless observe, as many other courts have, that the High Court's further guidance on this area of the law is sorely needed. To take just one example, recall that the Kansas Supreme Court recently confronted this exact issue in Boettger , supra . Yet, despite the fact the statute at issue in that case was nearly identical to our Section 2706(a)(3) — both are derived from the Model Penal Code — the legal conclusions drawn by the Kansas Supreme Court differ from ours in every significant respect. This disjointed state of affairs naturally calls for the High Court's intervention.
B.
Now that we have determined recklessness is a sufficiently culpable state of mind to separate permissibly punishable speech from protected speech, only one task remains. That charge is implied by the question we accepted for review, which asks, in relevant part, "[w]hether the Superior Court misapprehended controlling facts" in reaching its legal conclusions. J.J.M. , 228 A.3d 487. And it is no minor formality: the United States Supreme Court repeatedly has explained "that in cases raising First Amendment issues ... an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ " Bose Corp. , 466 U.S. at 499, 104 S.Ct. 1949, quoting New York Times Co. , 376 U.S. at 284-86, 84 S.Ct. 710.
Notwithstanding this mandate, we do not foreclose the possibility that this Court, in an appropriate case, could accept and resolve a pure issue of law and then remand to the intermediate appellate court for such review. However, since the question framed and accepted for our consideration in the present dispute subsumes an evaluation, based on the record, of whether facts were misconstrued, we find it appropriate to conduct this assessment ourselves to resolve the appeal.
As such, we proceed to determine whether the record here supports the Superior Court's conclusion that appellant recklessly uttered a true threat, which, as we have said, would not be entitled to First Amendment protection. In conducting this review, we do not disturb historical facts — who, what, when, how. Rather, our task "as expositors of the Constitution" is merely to "decide whether the evidence in the record is sufficient to cross the constitutional threshold" out of First Amendment protection. Bose , 466 U.S. at 511, 104 S.Ct. 1949. Consistent with our decision in Knox , this inquiry requires us to consider objective contextual circumstances surrounding the challenged statement as well as an analysis of the speaker's subjective intent in making it. See Knox , 190 A.3d at 1158. These objective considerations, we have long recognized, include "the statements, the context in which they were made, the reaction of listeners and others as well as the nature of the comments[.]" J.S. , 807 A.2d at 858 ; see also Knox , 190 A.3d at 1159 (relevant contextual factors include "whether the threat was conditional, whether it was communicated directly to the victim, whether the victim had reason to believe the speaker had a propensity to engage in violence, and how the listeners reacted to the speech").
Upon our independent review of the record, and after considering all the factors identified above, we respectfully disagree with the Superior Court's determination, adopted by the concurring and dissenting opinion, that appellant's speech crossed the line from protected expression to a proscribable true threat uttered with reckless disregard for the risk of causing terror in the listener. Our de novo review of the evidence reveals it is just too feeble to support the conclusion appellant made a threat as defined by Section 2706(a)(3). The entire record demonstrates only that appellant expressed an opinion to one person, and then, weeks later, another person overheard him make a facially ambiguous statement either to himself or an unidentified third party. The first statement, an opinion, surely was entitled to constitutional protection; the second statement was too vague to constitute a true threat, and, in any event, the circumstances do not establish appellant's "conscious disregard" of the risk he might cause terror in his listeners. Neither statement supports appellant's adjudication.
We restate again those facts pertinent to the analysis that derive support from the record. K.S. testified that at some point "a few weeks before" February 20, 2018, she heard appellant state "that he doesn't think people deserve to live and everyone should just die." N.T. Hearing, 4/26/2018 at 22; see also id . at 29 ("The statement that I heard was that he thought people should die, people, like, shouldn't live."). K.S. did not report the statement at that time. Weeks later, however, she learned from some "friends [who] approached" her that appellant had made another statement. Id . at 25. M.W., whom we assume is one of the friends referred to by K.S., overheard this second statement — that appellant "wanted to beat the record of 19[,]" id . at 14 — from two to three feet away while in the hallway between classes at WSCTS. The statement was not aimed at M.W., nor did she know to whom it was directed; M.W.’s best guess was that appellant "was either talking to someone, or he just said it." Id . Despite this uncertainty, M.W. did not attempt to discover with whom (if anyone) appellant was speaking, or to learn what he meant by the remark. See id . at 18 (testifying she felt further inquiry "was unneeded"). But M.W. did alert school officials to it "within the school day[,]" which apparently prompted K.S. to do the same regarding the statement she heard appellant express weeks earlier. Id . at 15. M.W. and K.S. both explained they reported this information to school administrators because they were "concerned" or "scared" by what appellant had stated. See id . (M.W. testifying she was "concern[ed]" and "felt it needed to be taken seriously"); id . at 25, (K.S. testifying "it was a serious problem" and that she was "scared" and "nervous" because she "didn't know what was going to happen" in light of her own awareness of "previous school shootings").
The trial court sat in de novo review of the adjudication rendered by the juvenile master, but because the parties apparently were satisfied with the evidentiary record created at the adjudication hearing, they opted simply to submit a copy of that material to the trial court for its independent judgment. As we understand the situation, the parties’ stipulation that the trial court was to render its decision based only on the record created at the adjudication hearing, without taking any new evidence, also bound the trial court to the juvenile master's evidentiary rulings. So the record, for present purposes, is comprised only of that evidence admitted by the juvenile master at the adjudication hearing. See Trial Court Opinion, 7/16/2018 at 10 (explaining it was "constrained only as to the testimony offered in the record").
Also appearing throughout the record are various references to other "statements" that appellant allegedly made at prior unspecified times. See N.T. Hearing, 4/26/2018 at 13 (M.W. explaining she once heard appellant say "[t]hings in reference to death and such" in a science class they shared together); id . at 15 (M.W. suggesting she was concerned "due to past statements" and because appellant had "shown signs of possibly being violent"); id . at 16 (M.W. expressing there were "past instances that have happened that led up to [her] concern"). All of this material, however, was stricken from the record by the juvenile master. See id . ("any reference to ‘past statements’ " from M.W.’s testimony deemed inadmissible). Consequently, we do not consider this testimony in our analysis.
The Superior Court concluded this evidence was sufficient to establish appellant communicated a true threat that was not protected by the First Amendment. It reasoned: "The circumstances surrounding [a]ppellant's statement that he ‘wanted to beat the record of 19’ evidenced that it was a threat, and that [a]ppellant communicated it with a conscious disregard for the likelihood that his words would engender fear in those who heard them." J.J.M. , 219 A.3d at 184-85 (footnote omitted). Relative to appellant's subjective mental state, the court explained the evidence demonstrated appellant knew his statement constituted wrongful conduct since "the events of the day in question ... do not suggest that [he] spoke to express an opinion, or that he was just jesting, or even that he was merely negligent in inducing fear in his schoolmates." Id . at 185. "Rather," the court continued, "[a]ppellant, who had cultivated an image among his classmates as one who relished the thought of death to human beings, must have known the effect that his words would have upon his fellow students in the wake of the Parkland shooting. Yet he chose to utter them anyway, in school, in the hallway between classes, for anyone and everyone around him to hear. We do not believe the First Amendment is or ever was intended to give [a]ppellant a protected right to do so." Id . (citation omitted). We cannot agree.
One major flaw with the Superior Court's analysis is that it plainly was based on suppositions and generalizations lacking any support in the record. For example, when we strip the record of those references to "past statements" ruled inadmissible by the juvenile master, see supra n.19, there is virtually nothing left to support the lower court's characterization of appellant as someone "who had cultivated an image among his classmates as one who relished the thought of death to human beings[.]" J.J.M. , 219 A.3d at 185. Similarly, nothing supports the notion that "anyone and everyone" around appellant in the hallway was capable of hearing his statement. The most we can say, based on the record before us, is that appellant apparently made the statement in such a manner that one person — M.W. — was able to overhear it from two or three feet away. We likewise are unable to endorse the Superior Court's statement that appellant expressed "a desire to become the most prolific high school shooter in history." Id . at 186. That portrayal is a far cry from appellant's actual, more ambiguous statement that he "wanted to beat the record of 19" — which, as appellant notes, could just as easily have been a reference to "participation in a video game or any other competition." Appellant's Brief at 32.
Beyond these mischaracterizations of the record, we also tend to agree with appellant's assertion that "the Superior Court appears to have been driven by an objective reasonable [listener] standard and a singular context, [i.e. ,] the prevalence of school shootings within the United States." Appellant's Brief at 17. To be sure, the lower court recited the proper test, which is consistent with the principles we reaffirm today:
In determining whether particular speech constitutes a true threat, consideration of both the speaker's scienter and the contextual circumstances is required. ... Relevant contextual factors include "whether the threat was conditional, whether it was communicated directly to the victim, whether the victim had reason to believe the speaker had a propensity to engage in violence, and how listeners reacted to the speech."
J.J.M. , 219 A.3d at 183, quoting Knox , 190 A.3d at 1159. However, the court then proceeded to essentially flip this burden back on appellant, by requiring him to provide some context demonstrating his statement was not a true threat . See id . at 185 (noting there was no evidence to "suggest that [a]ppellant spoke to express an opinion, or that he was just jesting"). But it is the government that must produce admissible evidence from which a court can evaluate the necessary contextual factors to discern whether a given statement is a true threat that may be punished; that burden of production most certainly does not fall upon the defendant.
That the lower court was so focused on facts not in the record (as opposed to those that are), and on what appellant failed to disprove (as opposed to what the government proved), is perhaps not surprising given the sparse record before us. Consider first the statement testified to by K.S., i.e. , that appellant "doesn't think people deserve to live and everyone should just die." N.T. Hearing, 4/26/2018 at 22. No context whatever was offered in support of this statement other than the fact that K.S. apparently did not find it troubling enough to warrant an immediate report. It is, moreover, clearly couched in terms of appellant's personal (albeit non-conformist and morbid) opinion. That appellant held such a macabre view may well have been offensive to some, including K.S., but such speech is nevertheless shielded by the First Amendment except where it is a true threat. See, e.g. , Knox , 190 A.3d at 1154 (First Amendment applies "equally to cultured, intellectual expressions and to crude, offensive, or tawdry ones"); J.S. , 807 A.2d at 860 ("Distasteful and even highly offensive communication does not necessarily fall from First Amendment protection as a true threat simply because of its objectionable nature."). Nothing here indicates it was. Accordingly, this first statement enjoys First Amendment protection.
So too does appellant's statement that he "wanted to beat the record of 19." N.T. Hearing, 4/26/2018 at 14. As with the first statement, almost no context was provided regarding this second statement. Of course, it was uttered in a school hallway six days after the Parkland shooting, and M.W. overheard it from two or three feet away. But the record tells us nothing more, such as the tone or volume of appellant's voice when he uttered the statement, what it was in reference to, or even to whom it was directed. See Appellant's Brief at 32 ("At the time of the statement, [appellant] was not involved or engaged in any conduct which could be construed as threatening or outwardly violent, nor is there any indication that the expression was made in a menacing tone or when [he] was in a state or anger, or the result of animosity towards another[.]"). The vagueness surrounding both the content and context of this statement convinces us it was not a true threat.
Moreover, although we recognize some listeners might hear appellant's statement as threatening because it was uttered in a school hallway in the wake of the Parkland shooting, that is not enough to prove it was made with a reckless — that is, a conscious — disregard of a substantial and unjustifiable risk of causing terror. See 18 Pa.C.S. § 2706(a)(3) ; § 302(b)(3). There is simply no evidence on this record from which to conclude appellant was aware the ambiguous remark he made might cause a serious public inconvenience or terror, and consciously proceeded to disregard that risk. See Appellant's Brief at 33 ("Never was there any testimony or evidence presented that [appellant knew] of any recent school shootings, [or] had acted violently or in a physically menacing manner while at school[.]"); id . at 36 ("no testimony was presented that [appellant] had a history of fighting at school, arguing with teachers or other students, or bringing or attempting to bring weapons to the school"). Nor does the mere fact that one unintended recipient overheard it and became subjectively concerned suffice to establish appellant's state of mind. See R.D. , 464 P.3d at 733 (warning courts that "placing significant weight on the subjective reaction of a statement's unintended recipients" creates risk of punishing speaker "for the content of a message that has been decoupled from its context") (emphasis in original).
Thus, our independent review of the entire record reveals that neither of appellant's statements was a true threat, and he did not utter them with conscious disregard of the risk of causing terror in any event. Either of these independent reasons compels the same result: Appellant's adjudication for terroristic threats under Section 2706(a)(3) — on this record — violates the First Amendment, and must be vacated.
Parenthetically, we note the prosecutor appeared to be under the mistaken impression that consciousness was not relevant to its case. See N.T. Hearing, 4/26/2018 at 43, 45 (arguing "the intent of the ... actor is not relevant" and that "[i]t's not what [appellant] intended, but it's the effect that he had on other people"). The prosecutor compounded this error by reciting an incomplete definition of recklessness, one which ignored the fact that recklessness requires proof of some subjective awareness, i.e. , a conscious disregard of the risks associated with the conduct at issue. See id . at 43. In this way, the prosecution seemingly lowered the applicable bar for its case from recklessness to mere negligence. Although this obviously is problematic in its own right, see Elonis , 575 U.S. at 739, 135 S.Ct. 2001, given our disposition, we need not address this particular issue further.
C.
We take this opportunity to express some final remarks. Notwithstanding our legal determination that appellant's statements here were not punishable by the relevant statutes, we emphasize we are fully cognizant of the tragic increase in school shootings and the detrimental impact the fear of such incidents has on parents, teachers, and students alike. The fact that most school children are now required to participate in "active shooter drills" is a sad indication of the prevalence of these incidents. Students should be encouraged to notify their parents and/or school authorities if they hear or read alarming comments or communications, just as K.S. and M.W. did in this case. And it is incumbent upon school officials to investigate such reports and take the necessary measures to ensure the safety of all involved. Indeed, we express no opinion on the school's decision to expel appellant, except to note it should come as no surprise that the school responded with a sense of urgency and solemnity to what it believed was a genuine threat uttered within its walls. Even unlikely threats should trigger serious consideration and thoughtful response.
But it is also a serious matter when the government, as opposed to a school, steps in and decides to charge any person, let alone a juvenile, with a crime for his or her speech. As this case demonstrates, there is a fine line between protected speech and speech that legitimately may be regulated, and courts have an unyielding duty to jealously guard the essential protections guaranteed by the First Amendment. Without question, the government is authorized to prosecute true threats — including in close-call cases like this one. However, when it pursues that extreme step, it must be prepared to present significantly more evidence than it did here.
Adjudication of delinquency vacated.
Justice Saylor joins the opinion.
Justice Todd files a concurring opinion joining Parts I, II, and III of the opinion and its mandate to vacate the adjudication of delinquency in which Justices Donohue and Wecht join.
Justice Mundy files a concurring and dissenting opinion joining Parts I, II, III, and IV(a) in which Chief Justice Baer joins.
JUSTICE TODD, concurring
This case requires us to determine whether 18 Pa.C.S. § 2706(a)(3), which allows for a conviction for terroristic threats based on recklessness, is unconstitutionally overbroad under the First Amendment. The majority answers this question in the negative, holding that speech made with a reckless disregard of its threatening nature, as opposed to speech made with a specific intent to terrorize, can support a conviction under Section 2706(a)(3) without running afoul of the First Amendment. Nevertheless, applying this standard to the facts of this case, the majority holds that Appellant's statements were not made with a reckless disregard of their threatening nature, and, therefore, "did not cross the constitutional threshold from protected speech to an unprotected true threat." Majority Opinion at 249. Thus, on this basis, the majority vacates Appellant's adjudication of delinquency. For the reasons that follow, I respectfully disagree with the majority's conclusion regarding the constitutionality of Section 2706(a)(3), as, in my view, to the extent Section 2706(a)(3) permits a conviction for speech in the absence of proof of the speaker's specific intent to inflict harm, it is unconstitutionally overbroad. On this distinct ground, I conclude that Appellant's adjudication of delinquency must be vacated. Thus, I join Parts I, II, and III of the majority opinion and its mandate to vacate Appellant's adjudication of delinquency, but I do not join Part IV.
My disagreement with the majority stems from our differing interpretations of the same relevant precedent; thus, I must begin there. The right to freedom of speech, as guaranteed by the United States Constitution, is not absolute, and the Constitution "tolerates content-based speech restrictions in certain limited areas when that speech is ‘of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality.’ " Commonwealth v. Knox , 647 Pa. 593, 190 A.3d 1146, 1154 (2018) (citation omitted). Examples of the types of speech that may be subject to such restrictions include fighting words, Chaplinsky v. New Hampshire , 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) ; incitement to imminent lawlessness, Brandenburg v. Ohio , 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam ); obscenity, Miller v. California , 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ; defamation, New York Times v. Sullivan , 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ; and child pornography, fraud, and other speech "integral to criminal conduct," United States v. Alvarez , 567 U.S. 709, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012).
Additionally, speech in which the speaker means to communicate a serious expression of intent to commit an act of unlawful violence against a particular individual or group of individuals - "true threats" - may be restricted, and may subject the speaker to criminal sanction. True threats fall outside the protective umbrella of the First Amendment due to the need to protect individuals "from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." R.A.V. v. City of St. Paul , 505 U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).
As the majority observes, the true threat category of speech, which is at issue in the case sub judice , was first examined by the United States Supreme Court in Watts v. United States , 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (per curiam ). During the Vietnam war, while the military draft was in effect, Watts was attending a discussion group in Washington, D.C. At one point during the discussion, someone suggested that young people should become more educated before expressing their views, to which Watts responded:
They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.
Id. at 706, 89 S.Ct. 1399 (internal quotation marks and citation omitted).
Based on his statement, Watts was convicted of threatening the President in violation of 18 U.S.C. § 871(a) ; however, the high Court overturned Watts’ conviction on appeal. Despite finding the federal statute facially valid in light of the overwhelming interest in physically protecting the President and allowing him to perform his duties without the threat of violence, the high Court held that Watts’ conviction could be upheld only if his words conveyed an actual threat, as opposed to political hyperbole. After considering the full context of Watts’ statement, including the fact that it was made during a political debate, was conditioned on an event that Watts vowed would never occur (his induction into the military), and was greeted by laughter from the audience, the Court concluded that the statement was merely an expression of political dissent, rather than a true threat.
After Watts , several courts, this Court included, focused on contextual circumstances in evaluating whether a speaker's words constituted a true threat, applying an objective listener standard. For example, in J.S. ex rel. H.S. v. Bethlehem Area School District , 569 Pa. 638, 807 A.2d 847, 854 (2002), abrogated by Commonwealth v. Knox , 647 Pa. 593, 190 A.3d 1146 (2018), J.S., an eighth-grade student, created a website from his home computer titled "Teacher Sux." The website contained derogatory, profane, offensive, and threatening comments about his algebra teacher. One page of the website listed reasons why J.S. believed the teacher should face termination, and another page depicted her face as Adolf Hitler. Another page of the website was titled "Why Should She Die?" and included a request for donations of $20 "to help pay for the hitman." 807 A.2d at 851. The website contained numerous expletives and derogatory content regarding the teacher, including an illustration showing her in a decapitated state, with blood dripping from her neck. The teacher learned of the website and believed the threats to be serious, and thus contacted the local police and the FBI. Law enforcement declined to file charges, but the school district expelled J.S. J.S. appealed the expulsion to the court of common pleas, alleging that it violated his First Amendment right to free speech because, inter alia , his speech did not constitute a true threat. The trial court affirmed, as did the Commonwealth Court.
This Court reversed on appeal. Relying upon various federal decisions consistent with Watts , we explained that, in determining whether speech falls within the definition of a true threat - "that is, if the communication is a serious expression of intent to inflict harm" - courts must "consider the statements, the context in which they were made, the reaction of listeners and others as well as the nature of the comments." Id. at 858. We noted that, in J.S. , the statements and website were not communicated directly to the teacher, and, indeed, included a notice that school faculty should not view the website. We also noted that there was no evidence that J.S. had made similar statements to the teacher on prior occasions, or that the teacher, while distraught after viewing the website, "had any reason to believe that J.S. had the propensity to engage in violence, more than any other student of his age." Id. at 859. Accordingly, we held that, in light of the totality of the circumstances, J.S.’s speech did not constitute a true threat, but instead was merely "a sophomoric, crude, highly offensive and perhaps misguided attempt at humor or parody," which "did not reflect a serious expression of intent to inflict harm." Id.
In 2003, the United States Supreme Court revisited the concept of a true threat in Virginia v. Black , 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (plurality), when it examined a Virginia statute which made it unlawful to burn a cross in public or on another's property with the intent to intimidate any person or group. The statute contained a provision making the burning of a cross prima facie evidence of an intent to intimidate a person or group of persons. In a consolidated appeal, the Virginia Supreme Court ruled the statute unconstitutional because it discriminated on the basis of content, in that it "selectively chooses only cross burning because of its distinctive message." Black v. Commonwealth , 262 Va. 764, 553 S.E.2d 738, 744 (2001). The court further held that the prima facie evidence provision rendered the statute overbroad because the "enhanced probability of prosecution under the statute chills the expression of protected speech." Id. at 746, 553 S.E.2d 738. Upon review of the statute, a majority of the United States Supreme Court determined that, while the statute did not violate the First Amendment insofar as it criminalized cross burning done with an intent to intimidate, the statutory presumption that the burning of a cross was prima facie evidence of an intent to intimidate a person or group of persons was, in fact, unconstitutional under the First Amendment.
Justice O'Connor, in a lead opinion joined by Chief Justice Rehnquist, Justice Stevens (who authored a separate concurring opinion), and Justice Breyer, explained:
"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, 89 S.Ct. 1399 ] ("political hy[p]erpole" is not a true threat); R.A.V. v. City of St. Paul , [505 U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ]. 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." Ibid. 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.
538 U.S. at 359-60, 123 S.Ct. 1536 (emphasis added). Thus, Black made clear that, in determining whether particular speech constitutes a true threat, consideration must be given not only to the contextual circumstances, but also to the speaker's intent.
Addressing the Virginia Supreme Court's conclusion that, pursuant to the high Court's decision in R.A.V. , the Virginia statute was unconstitutional because it discriminated on the basis of content and viewpoint, Justice O'Connor explained:
In R.A.V. , we held that a local ordinance that banned certain symbolic conduct, including cross burning, when done with the knowledge that such conduct would " ‘arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender’ " was unconstitutional. We held that the ordinance did not pass constitutional muster because it discriminated on the basis of content by targeting only those individuals who "provoke violence" on a basis specified in the law. The ordinance did not cover "[t]hose who wish to use ‘fighting words’ in connection with other ideas-to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality." This content-based discrimination was unconstitutional because it allowed the city "to impose special prohibitions on those speakers who express views on disfavored subjects."
538 U.S. at 361, 123 S.Ct. 1536 (citations omitted).
Justice O'Connor emphasized that the Court "did not hold in R.A.V. that the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech." Id. (emphasis original). Rather, the Court held that some types of content-based discrimination do not violate the First Amendment:
"When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class."
Id. at 361-62, 123 S.Ct. 1536 (quoting R.A.V. , 505 U.S. at 388, 112 S.Ct. 2538 ).
Justice O'Connor then observed that, unlike the statute at issue in R.A.V ., the Virginia statute:
does not single out for opprobrium only that speech directed toward "one of the specified disfavored topics." It does not matter whether an individual burns a cross with intent to intimidate because of the victim's race, gender, or religion, or because of the victim's "political affiliation, union membership, or homosexuality." Moreover, as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities.
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. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence. ... A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R.A.V. and is proscribable under the First Amendment.
Id. at 362-63, 123 S.Ct. 1536 (internal citations omitted).
Turning to the separate issue of whether the statutory presumption that the burning of a cross was prima facie evidence of an intent to intimidate rendered the Virginia statute unconstitutionally overbroad, Justice O'Connor found that it did, explaining:
As construed by the jury instruction, the prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant ... presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself.
It is apparent that the provision as so interpreted " ‘would create an unacceptable risk of the suppression of ideas.’ " The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross. As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that the Commonwealth will prosecute - and potentially convict - somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect.
Id. at 365, 123 S.Ct. 1536 (internal citations omitted).
Thus, the plurality concluded that "the prima facie evidence provision, as interpreted through the jury instruction ... is unconstitutional on its face." Id. at 367, 123 S.Ct. 1536. Nevertheless, recognizing that "the Supreme Court of Virginia has not authoritatively interpreted the meaning of the prima facie evidence provision," the plurality refused "to speculate on whether any interpretation of the prima facie evidence provision would satisfy the First Amendment," and acknowledged "the theoretical possibility that the court, on remand, could interpret the provision" in a manner that would avoid the constitutional deficiencies. Id. (emphasis original).
Justice Souter, joined by Justices Kennedy and Ginsburg, agreed with the plurality that the prima facie evidence provision rendered the Virginia statute facially unconstitutional because it effectively eliminated the intent requirement. Id. at 385, 123 S.Ct. 1536 (Souter, J., concurring in the judgment in part and dissenting in part) (noting that "the symbolic act of burning a cross ... is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten"). However, he disagreed with the plurality's suggestion that the Virginia Supreme Court could, on remand, interpret the prima facie evidence provision in a different manner so as to save the statute as a whole from facial unconstitutionality. Id. at 387, 123 S.Ct. 1536.
Justice Scalia, joined in part by Justice Thomas, agreed that, under the high Court's decision in R.A.V. , Virginia's prohibition on "cross burning carried out with the intent to intimidate" does not violate the First Amendment. Id. at 368, 123 S.Ct. 1536 (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in part). He disagreed, however, with the plurality's decision to invalidate the Virginia statute's prima facie provision on its face, and would have allowed case-by-case challenges to convictions where the State was not required to prove intent. Id. at 372-73, 123 S.Ct. 1536.
Finally, Justice Thomas dissented, suggesting that, because the Virginia statute applied only to conduct, not expression, it did not implicate any First Amendment concerns. Id. at 394-95, 123 S.Ct. 1536 (Thomas, J., dissenting). Alternatively, Justice Thomas concluded that, even applying First Amendment principles, "the fact that the statute permits a jury to draw an inference of intent to intimidate from the cross burning itself presents no constitutional problems." Id. at 395, 123 S.Ct. 1536.
More than a decade after Black , in Elonis v. United States , 575 U.S. 723, 135 S. Ct. 2001, 192 L.Ed.2d 1 (2015), the high Court reiterated that a speaker's mental state is an essential consideration in determining whether a statement constitutes a true threat. Elonis had posted rap lyrics and other material on the Facebook social media platform. The lyrics contained violent language and imagery pertaining to his wife, coworkers, and others, although the material was interspersed with disclaimers indicating the lyrics were fictitious, and bore no intentional resemblance to real people. Ultimately, Elonis was convicted of four counts of transmitting threats to injure in violation of 18 U.S.C. § 875(c). On appeal, he argued that the district court erred in denying his request that the jury be instructed that the government was required to prove that he intended to communicate a true threat.
The Supreme Court recognized that the federal statute under which Elonis was convicted was "meant to proscribe a broad class of threats ... but did not identify what mental state, if any, a defendant must have to be convicted." Elonis , 135 S. Ct. at 2008. The high Court concluded that Elonis's conviction, which was "premised solely on how his posts would be understood by a reasonable person," could not stand, because such a standard is "inconsistent with ‘the conventional requirement for criminal conduct - awareness of some wrongdoing.’ " Id. at 2011 (citation omitted and emphasis original). The Court further explained that "[h]aving liability turn on whether a ‘reasonable person’ regards the communication as a threat - regardless of what the defendant thinks - ‘reduces culpability on the all-important element of the crime to negligence,’ and we ‘have long been reluctant to infer that a negligence standard was intended in criminal statutes.’ " Id. (citations omitted). However, as the parties neither briefed nor argued the issue of whether a finding of recklessness would be sufficient to sustain a conviction under Section 875(c), the Court did not resolve that particular question.
As noted by the majority, in the wake of Black , federal courts have disagreed as to whether Black's definition of a true threat requires that the speaker merely intend to communicate a statement, or whether the speaker must intend that the statement be interpreted by the recipient as a serious expression of an intent to commit an act of unlawful violence. See Majority Opinion at 258. Indeed, in Knox , supra , we recognized the absence of a consensus on this issue. In that case, Knox had created a rap music video which threatened certain city police officers by name. After a third party posted the video on the internet, Knox was charged and convicted of terroristic threats under Section 2706(a)(1). On appeal, before considering whether the video constituted a true threat, we acknowledged:
Some [courts] have continued to use an objective, reasonable-person standard. These courts interpret Black 's intent requirement as applying to the act of transmitting the communication. See United States v. Clemens , 738 F.3d 1, 11 (1st Cir. 2013) (citing cases). In their view, an objective standard remains appropriate for judging whether the speech, taken in its full context, embodies a serious expression of an intent to commit unlawful violence. They reason from the premise that the First Amendment traditionally lifts its protections based on the injury inflicted rather than the speaker's guilty mind. See, e.g. , United States v. Jeffries , 692 F.3d 473, 480 (6th Cir. 2012), abrogation on other grounds recognized by United States v. Houston , 683 Fed.Appx. 434, 438 (6th Cir. 2017) ; United States v. White , 670 F.3d 498, 508-09 (4th Cir. 2012), abrogated on other grounds by United States v. White , 810 F.3d 212, 220 (4th Cir. 2016).
Other courts have read Black as implying that the First Amendment only allows the government to penalize threatening speech uttered with the highest level of scienter, namely, a specific intent to intimidate or terrorize. See United States v. Cassel , 408 F.3d 622, 632-33 (9th Cir. 2005) ; but cf. Fogel v. Collins , 531 F.3d 824, 831 (9th Cir. 2008) (observing that the Ninth Circuit has not consistently followed a subjective-intent standard). Still others have charted something of a middle course, suggesting that "an entirely objective definition [of a true threat] is no longer tenable" after Black , while reserving judgment on whether the standard should be subjective only, or a subjective-objective combination pursuant to which a statement "must objectively be a threat and subjectively be intended as such." United States v. Parr , 545 F.3d 491, 500 (7th Cir. 2008) (emphasis in original).
Ultimately, this Court recognized in Knox that, following the high Court's decision in Black , "an objective, reasonable-listener standard such as that used in J.S. is no longer viable for purposes of a criminal prosecution pursuant to a general anti-threat enactment." Id. at 1156-57. We further held that, under Black , "the First Amendment necessitates an inquiry into the speaker's mental state," noting that the Justices in Black who found the Virginia statute's presumption as constitutionally problematic appeared to focus on "values and concerns associated with the First Amendment: the social undesirability of suppressing ideas, punishing points of view, or criminalizing statements of solidarity or ideology." Knox , 190 A.3d at 1157. We reasoned that "[c]onstruing the [ Black ] Court's discussion of the speaker's intent as pertaining solely to the act of transmitting the speech appears difficult to harmonize with" the principle that "[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." Id. (quoting Black , 538 U.S. at 360, 123 S.Ct. 1536 ) (emphasis original).
Accepting that the high Court in Black left open the question of "whether a statute which criminalizes threatening statements spoken with a lower scienter threshold, such as knowledge or reckless disregard of their threatening nature, can survive First Amendment scrutiny," id. at 1157 n.10, we concluded that Black established two specific principles: "First, the Constitution allows states to criminalize threatening speech which is specifically intended to terrorize or intimidate. Second, in evaluating whether the speaker acted with an intent to terrorize or intimidate, evidentiary weight should be given to contextual circumstances such as those referenced in Watts ." Id. at 1158. As noted above, those contextual factors include whether the threat was conditional, whether it was communicated directly to the victim, whether the victim had reason to believe the speaker had a propensity to engage in violence, and how the listeners reacted to the speech. See also J.S.
Applying that standard to Knox's video, we noted that Knox's threats were primarily unconditional; that the officer who initially viewed the video immediately notified police personnel, which suggested he did not view the video as satire or social commentary; and that the officers identified in the video were concerned for their safety and took precautions to avoid becoming victims of violence. We opined that the fact that the video was not communicated directly to the police, but had been uploaded to the internet by a third party, did not negate an intent by Knox that it would be viewed by the officers. Ultimately, we found that Knox's video demonstrated a subjective intent on his part to terrorize or intimidate the police officers, and that, as a result, it constituted a true threat. Thus, we upheld Knox's conviction.
Justice Wecht authored a thoughtful concurring and dissenting opinion in Knox , which was joined by Justice Donohue, in which he agreed with the majority that Black rendered the previously-applied objective reasonable-listener standard for determining whether speech was a true threat no longer viable. Knox , 190 A.3d at 1161 (Wecht, J., concurring and dissenting). Justice Wecht additionally agreed with the Knox majority's conclusion that an "assessment of the speaker's subjective intent" is necessary in determining whether speech constitutes a true threat, and he joined the majority in affirming Knox's convictions. Id. However, Justice Wecht disagreed with the majority's decision not "to consider the more important question of whether the First Amendment requires proof of specific intent, or whether the [First] Amendment would tolerate punishment of speech based upon proof of only a lesser mens rea such as recklessness or knowledge." Id. at 1162 (emphasis original). After examining the positions adopted by the various courts of appeals, Justice Wecht endorsed the view adopted by the Ninth Circuit in Cassel , suggesting:
As the majority concluded that the evidence was sufficient to support a finding that Knox acted with subjective intent to terrorize and intimidate, and, therefore, that his conviction was constitutionally supportable on that basis, the majority found it unnecessary to consider whether a conviction based on a lower mens rea would violate the First Amendment.
I note, as the Superior Court noted in its decision, that during her testimony "M.W. indicated she was not absolutely sure that nineteen was the number Appellant indicated." N.T. Adjudication Hearing, 4/26/18, at 14." In the Int. of J.J.M. , 219 A.3d 174, 180 n.3 (Pa. Super. 2019).
[T]he Ninth Circuit correctly determined that the reasoning underlying the Supreme Court's Black decision necessitates the conclusion that the First Amendment requires such a subjective examination, and that proof of the speaker's intent to intimidate the recipient of the communication is a required inquiry in order to balance the need to protect victims of threats with the First Amendment rights of the speaker.
Id. at 1164.
Nevertheless, Justice Wecht agreed with the majority that consideration of the speaker's mindset is only half of the analysis, and he advocated for the following two-prong approach for determining whether speech constitutes a true threat:
First, I would require reviewing courts to conduct an objective analysis to determine whether reasonable recipients would consider the statement to be "a serious expression of intent to inflict harm," and not merely jest, hyperbole, or a steam valve. J.S. , 807 A.2d at 858. For this purpose, I believe that the factors that we delineated in J.S. ... are relevant and useful. Those factors include: "the statements, the context in which they were made, the reaction of the listeners and others as well as the nature of the comments." Id. No one factor should be considered conclusive, and each should be considered and analyzed, alone and against the others, under the totality of the circumstances. Second, if the first prong is satisfied, I would require courts to conduct a subjective analysis to ascertain whether the speaker specifically intended to intimidate the victim or victims, or intended his expression to be received as a threat to the victim or victims. Failure of the government to satisfy either prong would mean that, under the First Amendment, the statement cannot be penalized or proscribed.
Id. at 1165 (emphasis added).
In the instant case, the Commonwealth and its amici suggest that it remains an open question whether speech made with reckless disregard of the effect on a recipient may be deemed a true threat not subject to First Amendment protection, and they would answer this question in the affirmative. In support of their position, they rely on Justice Alito's concurring and dissenting opinion in Elonis , in which he opined that recklessness is, in fact, the appropriate mens rea for determining whether speech constitutes a true threat, as well as Justice Thomas's dissent in Elonis , wherein he stated that lower courts "can safely infer that a majority of this court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough." Elonis , 135 S. Ct. at 2018 (Thomas, J., dissenting).
The positions of Justices Alito and Thomas, however, were the minority positions in Elonis , and, obviously, are not controlling. Moreover, a subsequent expression by one member of the high Court suggests that, despite Justice Thomas's prediction, a holding by the high Court that permits a finding of a true threat based only upon a finding of the speaker's recklessness is not a foregone conclusion. See Perez v. Florida , ––– U.S. ––––, 137 S. Ct. 853, 197 L.Ed.2d 480 (2017) (Sotomayor, J., concurring in the denial of certiorari ). In Perez , the defendant was charged under a Florida statute making it a felony "to threaten to throw, project, place, or discharge any destructive device with intent to do bodily harm to any person or with intent to do damage to any property of any person." Id. at 853 (quoting Fla. Stat. § 790.162 (2007) ). The charges arose after Perez, while inebriated, went to a liquor store to obtain ingredients for what he referred to as a "Molly cocktail." Id. One of the employees thought Perez was referring to an incendiary Molotov cocktail, and asked Perez if it would burn anything up. Perez responded that he did not have that type of cocktail, and his group of friends laughed at the joke. Perez, however, continued to joke about having a Molotov cocktail, and then stated he was going to blow up the store and the world, at which point store employees notified the police.
At trial, the court instructed the jury that it could find Perez guilty if the State proved that (1) there was a threat, namely, "a communicated intent to inflict harm or loss on another when viewed and/or heard by an ordinary reasonable person;" and (2) that Perez intended to make the threat, intent being defined as "the stated intent to do bodily harm to any person or damage to the property of any person." Id. at 854. Following his conviction, Perez petitioned for certiorari , challenging the trial court's instruction on the basis that it did not require proof of his mens rea. The high Court denied review.
In an opinion concurring in the denial of certiorari , Justice Sotomayor suggested that the jury instructions and Perez's conviction raised serious First Amendment concerns worthy of review. Specifically, she explained that "statutes criminalizing threatening speech ... ‘must be interpreted with the commands of the First Amendment clearly in mind’ in order to distinguish true threats from constitutionally protected speech. ... Under our cases, this distinction turns in part on the speaker's intent." Id. at 854.
She reiterated that the high Court has defined a true threat as one "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." Id. (quoting Black , 538 U.S. at 359, 123 S.Ct. 1536 ). Justice Sotomayor further opined:
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.
The jury instruction in this case relieved the State of its burden of proving anything other than Perez's "stated" or "communicated" intent. This replicates the view we doubted in Watts , which permitted a criminal conviction based upon threatening words and only " ‘an apparent determination to carry them into execution.’ " ... And like the prima facie provision in Black , the trial court's jury instruction "ignore[d] all of the contextual factors that are necessary to decide whether a particular [expression] is intended to intimidate.
Id. at 855 (citations omitted and emphasis original). However, because the lower courts had not reached the merits of the First Amendment issue, Justice Sotomayor "reluctantly" concurred in the denial of certiorari . Id. at 854.
Given Justice Sotomayor's reasoning, it is evident that, at present, the high Court is not of one mind as to whether a recklessness standard, rather than whether the speaker intended to intimidate the listener, is the appropriate test for determining whether there has been a true threat. Accordingly, I agree with the majority that we lack definitive guidance from the high Court, and, as a result, that we must "chart our own course." Majority Opinion at 265. For the reasons that follow, however, I would follow a different path than the majority.
As noted above, the high Court in Black explained that:
"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 , supra, at 708, 89 S.Ct. 1399 ... ("political hy[p]erpole" is not a true threat); R.A.V. v. City of St. Paul , 505 U.S.[ ] at 388, 112 S.Ct. 2538 .... 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." Ibid. 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.
538 U.S. at 359-60, 123 S.Ct. 1536. Though Black produced five separate opinions, when read together, in my view, a majority of the Black Court agreed that true threats are constitutionally proscribable if the government can prove that the speaker intended to intimidate the victim. See Black , 538 U.S. at 359-60, 365, 123 S.Ct. 1536 (O'Connor, J., plurality, joined by Rehnquist, C.J., Stevens, Breyer, JJ. ); id. at 372, 123 S.Ct. 1536 (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in part) (agreeing that Virginia statute was "constitutionally problematic" insofar as it allowed for convictions in the absence of proof of a defendant's intent to intimidate); id. at 385, 123 S.Ct. 1536 (Souter, J. concurring in the judgment in part and dissenting in part, joined by Kennedy and Ginsburg, JJ.) (observing that the effect of the prima facie evidence provision is "to skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning").
While some courts have interpreted Black's intent requirement as applying only to the act of transmitting the communication, in my view, these interpretations fail to give due consideration to the entire definition of true threat set forth above - namely, that the speaker means to communicate a serious expression of an intent to commit violence . Several courts have reached this same conclusion. For example, in Cassel , supra , the Ninth Circuit Court of Appeals opined that a "natural reading" of Black's definition of a true threat requires not only that the communication be intentional, but also that the speaker intend for his language to threaten the victim. 408 F.3d at 631 (emphasis original). The court reasoned:
The [ Black ] 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."
Id. at 631.
Similarly, in United States v. Heineman , 767 F.3d 970 (10th Cir. 2014), the Tenth Circuit Court of Appeals stated: "[w]e 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." Id. at 978 (emphasis original). In Heineman , the defendant was convicted of transmitting in interstate commerce a threat to injure another, in violation of 18 U.S.C. § 875(c), after sending an email to a professor at the University of Utah, which caused the professor to fear for his own safety and that of his family. The statute did not contain a mens rea requirement. In concluding that the First Amendment requires that the government, in prosecuting a defendant based on a true threat, prove that the defendant intended the recipient to feel threatened, the Heineman court opined:
When the [ Black ] Court says that the speaker must "mean[ ] to communicate a serious expression of an intent," it is requiring more than a purpose to communicate just the threatening words. Id. It is requiring that the speaker want the recipient to believe that the speaker intends to act violently. The point is made again later in the same paragraph when the Court applies the definition to intimidation threats: "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 359, 123 S.Ct. 1536 ) (emphasis original).
The Heineman court further observed that the Black plurality's overbreadth analysis was based on the understanding that the speaker must intend to place the recipient in fear:
According to the plurality, at least one First Amendment flaw in the prima facie provision was that a jury could infer an "intent to intimidate" from the act of cross-burning itself. [ Black , 538 U.S. at 363, 123 S.Ct. 1536 ]. The prima facie provision, wrote Justice O'Connor, "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." Id. at 366, 123 S.Ct. 1536 [ ]. But how could that be a First Amendment problem if the First Amendment is indifferent to whether the speaker had an intent to threaten? 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.
The Heineman Court acknowledged that Justice O'Connor’s overbreadth analysis was not adopted by the majority of the Court, but noted that the plurality "obviously assumed that the discussion of the R.A.V. issue had already established that an intent to threaten was required;" that Justice Scalia did not challenge that assumption; and that Justice Souter's opinion "seems to have assumed that intent to instill fear is an element of a true threat required by the First Amendment." 767 F.3d at 979.
Appellant's statement was made six days after seventeen students were killed at Marjory Stoneman Douglas High School in Parkland, Florida, the deadliest high school shooting in the United States. See, e.g. , Brendan O'Brien, Accused Florida School Shooter Pleads Guilty in 2018 Parkland Massacre , Reuters (last visited Nov. 4, 2021), https://www.reuters.com/world/us/accused-florida-school-shooter-set-plead-guilty-2018parkland-massacre-2021-10-20/.
Like the courts in Cassel and Heineman , I conclude that both the language used by the Black Court in defining a true threat, as well as the plurality's determination that the Virginia statute was unconstitutional precisely because it eliminated the requirement of the intent to intimidate, dictates that, in order to criminalize a defendant's speech as a true threat, the government must prove that the defendant intended that the recipient feel threatened, not simply that the defendant communicate or utter words which might ultimately be construed by the listener as threatening.
I find further support for this interpretation in the Black Court's declaration that "[t]he speaker need not actually intend to carry out the threat," which appears immediately following the Court's statement that 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 359-60, 123 S.Ct. 1536. A caveat that the speaker need not actually intend to carry out the threat is understandable if there is a requirement that the defendant intend the victim to feel threatened. However, if a true threat may be established based only on the speaker's communication or utterance of certain words without regard to his subjective intent, such a qualification is wholly unnecessary. See Heineman , 767 F.3d at 980 ("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.’ " (citation omitted)).
In addition, the Kansas Supreme Court recently considered a criminal threat statute that was, in relevant part, nearly identical to the one at issue in the case before us, and concluded, as a matter of first impression, that the statutory provision allowing for a conviction based on recklessness was unconstitutionally overbroad. In State v. Boettger , 310 Kan. 800, 450 P.3d 805 (2019), the defendant was convicted of making a "criminal threat," which the statute at issue defined as including 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. " Id . at 807 (emphasis added). On appeal of his conviction, Boettger, argued, inter alia , that the portion of the statute allowing for a conviction based on a threat made with reckless disregard was unconstitutionally overbroad because it had the potential to punish someone for speech that does not constitute a true threat. The Kansas Supreme Court agreed.
In finding the portion of the statute which allowed for a conviction based on a threat made in reckless disregard for causing fear to be unconstitutionally overbroad, the Boettger Court, relying on the Ninth Circuit's reasoning in Cassel and the Tenth Circuit's reasoning in Heineman , stated:
[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. "
450 P.3d at 815 (quoting Black , 538 U.S. at 360, 123 S.Ct. 1536 (emphasis original)).
In addressing the Kansas intermediate court's reliance on Justice Alito's concurring and dissenting opinion in Elonis for its determination that "[r]ecklessness is sufficient mens rea to separate wrongful conduct from otherwise innocent conduct," the Boettger Court noted that it had "trouble squaring that conclusion with Black and Elonis ." 450 P.3d at 816. The court acknowledged that two jurisdictions, Connecticut and Georgia, agreed with Justice Alito's view, and, further, that this Court in Knox suggested there is an open question as to whether the recklessness standard can be applied in the true threat context. However, the Kansas Supreme Court adopted the view it found "reflected in Justice Sotomayor's opinion in Perez ," id. at 817, concluding:
See State v. Taupier , 330 Conn. 149, 193 A.3d 1 (2018) (holding recklessness standard constitutional in a true threat context), cert. denied , ––– U.S. ––––, 139 S. Ct. 1188, 203 L.Ed.2d 202 (2019) ; Major v. State , 301 Ga. 147, 800 S.E.2d 348 (2017) (upholding recklessness standard postBlack ).
Section 302(b)(3) provides:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.
18 Pa.C.S. § 302(b)(3).
Under Black , the portion of [the statute] 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. 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.
Id. at 818 (internal citation omitted).
In response to Boettger's argument that the protester in Watts could have been convicted under the Kansas statute - an argument that Appellant makes regarding Section 2706(a)(3) - the court found the example a "persuasive illustration[ ] of ways in which the [Kansas statute] potentially criminalizes speech protected under the First Amendment." 450 P.3d at 818.
The majority "disagree[s] with those courts that have concluded Black is dispositive, or even particularly instructive," as to whether the First Amendment permits the criminalization of statements made in the absence of a specific intent to terrorize, opining that "those courts have simply read too much into Black ." Majority Opinion at 264. Instead, the majority notes that its "own views align more closely with Justice Thomas's [dissenting opinion] on this point" that specific intent is not required. Id. at 265 n.13. However, as discussed supra, while there were five separate opinions in Black , in my view, a majority of the Justices in Black agreed that true threats are constitutionally proscribable only if the government can prove that the speaker intended to intimidate the victim. I would not disregard that consensus based on the opinions of a dissenting Justice in that case, or based on the decisions of the high Court in cases that did not involve true threats. See , e.g. , Majority Opinion at 266 (observing that the high Court has "recognized recklessness is a sufficient mens rea to render speech proscribable" in other First Amendment contexts, such as criminal and civil libel).
Thus, contrary to the majority, and for the reasons explained above, I conclude that, in order to criminalize a defendant's speech as a true threat without violating the First Amendment, the government must prove that the defendant intended that the recipient feel threatened, not merely that the defendant communicated or uttered words which might be construed as threatening by a listener. As Section 2706(a)(3) criminalizes speech which the speaker does not intend to convey as a threat, I would hold that it is unconstitutionally overbroad. On this basis, I would vacate Appellant's adjudication of delinquency under Section 2706(a)(3). Accordingly, while my underlying reasoning differs, I agree with the majority's determination to vacate Appellant's adjudication of delinquency, and, hence, concur in the result.
Justices Donohue and Wecht join this concurring opinion.
JUSTICE MUNDY, concurring and dissenting
We granted review in this matter to consider whether the portion of Pennsylvania's terroristic threats statute that makes it a crime for a person to communicate a threat "to cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience" is violative of the First Amendment of the United States Constitution. Section 2706(a)(3) of the Crimes Code, 18 Pa.C.S. § 2706(a)(3). I agree with the conclusion reached by the Majority Opinion that the First Amendment does not prohibit the criminalization of true threats made with a reckless culpability. As such, I agree with the Majority Opinion that Section 2706(a)(3) passes constitutional muster. However, because my views on whether the record supports Appellant's adjudication of delinquency under Section 2706(a)(3) differ from that of the Majority, I dissent with respect to that issue. Thus, I join Parts I, II, III, and IV(a) of the Majority Opinion, but I do not join Parts IV(b) and (c).
In this regard, my views align with that of the Superior Court, which recounted the relevant testimony from the adjudication hearing before the juvenile master, summarized Appellant's arguments, and analyzed whether Appellant's speech constituted a terroristic threat under Section 2706(a)(3) as follows:
At the adjudication hearing [before the juvenile master], M.W. stated that she personally heard Appellant say on February 20, 2018, in the hallway of the school between classes, that he "wanted to beat the record of 19."[ 1 ] N.T. Adjudication Hearing, 4/26/18, at 14. K.S. heard Appellant's statement about wanting to "beat the record" indirectly, through other students. Id. at 25. Both M.W. and K.S. indicated that they took Appellant seriously because he had in the past spoken to them about death and that people should die. Id. at 13, 29. K.S. further testified that she had been generally uneasy and anxious at the time she heard of Appellant's statements as there had been a recent school shooting in the news.[ 2 ] Id. at 31. M.W. did not inquire of Appellant as to the meaning of his statement, as she felt explanation was unneeded. Id. at 18.
Appellant argues that the actual words he said, standing alone, have "no logical connection which can equate the statement with harm. ... [Appellant] could have been speaking about participation in a video game or any other competition[.]" Appellant's brief [to the Superior Court] at 9. Appellant made the same argument to the [Court of Common Pleas of Luzerne County during its de novo review of the juvenile master's adjudication]. See N.T. Adjudication Hearing, 4/26/18, at 41-42. However, the [common pleas] court rejected it, noting that it was made in the presence of students who cannot help but be aware in this day and age of "the proliferation of incidents which have occurred throughout this country." [Common Pleas] Court Opinion, 7/16/18, at 8. We agree that, from this context and the circumstances surrounding Appellant's
statement, the words expressed an intent to cause harm and an indication of impending menace. Hence, Appellant made a threat within the meaning of [Section] 2607.
Further, we conclude that the evidence sufficiently established that Appellant made his threat with reckless disregard for the risk that it would cause terror. Again, the facts are that, while the news was dominated by the deadliest high school shooting in this country's history, Appellant proclaimed in a high school hallway, between classes, loud enough for other students to hear, that he wanted to "beat the record of 19."[ ] We do not hesitate to conclude that Appellant consciously disregarded a substantial and unjustifiable risk that the threat would terrorize his fellow students. See [ Section 302(b)(3) of the Crimes Code3 ,] 18 Pa.C.S. § 302 ([b])(3) (defining recklessness).
In the Int. of J.J.M. , 219 A.3d 174, 180-81 (Pa. Super 2019).
Accordingly, as I would affirm Appellant's adjudication of delinquency under Section 2706(a)(3), I must respectfully dissent from the portion of the Majority Opinion holding otherwise.
Chief Justice Baer joins this concurring and dissenting opinion.