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Originalist Justice Clarence Thomas ripped the Kansas Supreme Court for allegedly taking a U.S. Supreme Court precedent too far in excusing a man who told the son of a police officer his dad would wind up “in a ditch.”
Thomas’ rebuke came in his dissent from the high court’s decision not to hear an appeal of that particular case as well as another one involving a man who told his mother he was “going to f**king kill [her] a**” after the Kansas Supreme Court ruled that both cases involved First Amendment protected speech.
The Kansas court’s ruling overturned a state law that both men were convicted under, which Thomas said is not only a contradiction of past rulings but also an “overreading” of a 2003 U.S. Supreme Court ruling, Fox News reported.
Regarding the case at hand, a man named Timothy Boettger became upset one night after someone shot his daughter’s dog and police did not appear to be investigating the incident, according to a petition submitted by Kansas requesting the U.S. Supreme Court overrule the state high court and thus reinstate the law that was overturned.
An angered Boettger traveled to a convenience store where he knew that the worker there was the son of a police officer. Once there, “Boettger told another employee that ‘these people … might find themselves dead in a ditch somewhere,’” before leaving, only to return and confront the officer’s son again, according to the petition.
“You’re the man I’m looking for,” Boettger allegedly told the officer’s son, visibly upset, shaking, and standing with clenched fists. According to later testimony from the officer’s son, Boettger continued to say that “he had some friends up in the Paseo area in Kansas City that don’t mess around, and that I was going to end up finding my dad in a ditch.”
Boettger would be convicted of one count of making a “reckless criminal threat,” though he denied he was threatening the officer’s son or the officer himself. But the Kansas high court tossed out the conviction, ruling instead that a provision of the law criminalizing threats made “in reckless disregard” was too broad and thus did not rise to the “true threat” level standard used often in free speech cases. The Kansas high court also found that Boettger’s threat did not approach the level that is necessary to consider what he said was intentional intimidation.
But on Monday, Thomas said that the Kansas Supreme Court’s ruling was wrong.
“In my view, the Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate,” Thomas wrote. “It appears to follow that threats of violence made in reckless disregard of causing fear may be prohibited. The Kansas Supreme Court reached the opposite conclusion by overreading our decision in Black, which did not answer the question presented here.”
The case Thomas cited is Virginia v. Black, where the U.S. Supreme Court held in 2003 that states may ban a cross-burning that is meant as an act of intimidation but that they could not, in law, make the assumption that all cross burnings are acts of intimidation.
The conservative justice also noted that two states, Connecticut and Georgia, have previously ruled speech like that used by Boettger could indeed be punished legally without injury to the First Amendment.
Thomas noted, for instance, “[t]he Supreme Court of Connecticut found that ‘nothing in Black itself suggests that the [C]ourt intended to overrule the preexisting consensus among the federal circuit courts of appeals that threatening speech may be punished under the [F]irst [A]mendment when a reasonable person would interpret the speech as a serious threat.’”
He also said there is a long history in the U.S. dating back to the earliest days of the republic where states passed laws banning certain threats, which is indicative that the Constitution’s framers likely approved of them.
Thomas also noted that 16 states as well as Washington, D.C., are currently facing challenges to similar laws and that as such, the high court should address the issue now and settle it.
“If state high courts hold even a fraction of these statutes unconstitutional, we will have no choice but to intervene,” Thomas said. “I would do so now to address the problem caused by our language in Black.”
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