Today the Supreme Judicial Court (SJC) published an opinion which modifies the elements of “threatening to commit a crime.”
The law prohibits “true threats” defined as “serious expressions conveying that an author means to commit an act of unlawful violence against the recipient.” Until recently, such threats were completely unprotected by the First Amendment of the U.S. Constitution.
However, in 2023 the U.S. Supreme Court decided that the First Amendment requires prosecutors to prove beyond a reasonable doubt that the threat-making defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” See Counterman v. Colorado, 600 U.S. 66, 69 (20223).
Consistent with the Supreme Court’s ruling, the SJC has modified the state’s as follows:
A true threat may be punished criminally only if the speaker had some subjective understanding of the threatening nature of [the] statements. Specifically, to convict a person for making a true threat, the State must prove that the person acted at least recklessly –- that is, the person is aware that others could regard his statements as threatening violence and delivers them anyway. (Citations and quotations omitted.)
The full text of the SJC opinion is attached below.