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Court should adopt Colorado’s “totality of circumstances” test when assessing whether a purported threat receives First Amendment protection

WASHINGTON – The Supreme Court must uphold the ability to enforce foundational civil rights laws used to combat online threats and intimidation, the Lawyers’ Committee for Civil Rights Under Law and the National Women’s Law Center argued in a brief submitted to the U.S. Supreme Court last Friday. 

In a case addressing the scope of the “true threats” doctrine under the First Amendment, the groups argue that the First Amendment does not require a subjective showing that a person intended to threaten an individual in order to hold them liable. The brief argues that adding this legal requirement would allow online threats to chill the speech of Black people and other people of color, impeding their free speech while twisting the First Amendment to shield intentional, discriminatory harm. Such a standard would “frustrate enforcement of the Voting Rights Act and other civil rights laws and create a more dangerous internet, one that allows abusers to threaten freely but leaves victims intimidated into silence.” 

“With hate crimes and white supremacist ideology on the rise, bad actors continue to weaponize technology to intimidate and harass individuals, organizations and entire communities. Online threats and harassment, especially when driven by racism, undermine free expression and the exercise of our most precious rights, from engaging in peaceful protest to voting,” said Damon Hewitt, President and Executive Director of the Lawyers’ Committee. ”It is crucial that the Court adopts a legal standard that does not make it more difficult to combat these modern-day manifestations of racism.”

“For decades, federal and state civil rights laws have been crucial in protecting against harassment and abuse, including online threats, which causes real-world harms for women and girls of color, LGBTQI+ people, low-income women and families.Subjecting people facing harassment to a harsher legal standard would gravely weaken these critical federal civil rights protections, just as they are needed to meet the rise in misogyny,” said Fatima Goss Graves, President and CEO of the National Women’s Law Center. “The Supreme Court must not jeopardize our right to live free from discrimination and harassment.”

The brief paints a real-world picture of how harms occur and offers a legal standard to balance competing concerns. Online hate and harassment, included in the brief notes, disproportionately target Black people and other people of color, particularly those with intersectional identities such as women of color and LGBTQ people of color. Targeting these communities using online threats causes harm, regardless of the speaker’s subjective intent. The brief also acknowledges how legal standards can be abused in discriminatory ways, citing the long history of criminalization of Black communities’ speech and free expression by all levels of government. 

To balance these concerns, the groups argue for adoption of a “totality of circumstances,” which strikes the right balance between protecting against threats and preserving the rights of the accused. The groups write, “[w]hile a subjective intent requirement would hamstring critical civil rights protections and chill free speech, a totality of the circumstances test that allows courts to consider all relevant evidence would help safeguard against risks to Black communities of discriminatory over-enforcement, wrongful prosecution, and persecution of civil rights activists.”

Read the amicus brief here.


About the Lawyers’ Committee for Civil Rights Under Law – The Lawyers’ Committee for Civil Rights Under Law is a nonpartisan, nonprofit organization, formed in 1963 at the request of President John F. Kennedy to mobilize the nation’s leading lawyers as agents for change in the Civil Rights Movement. Today, the Lawyers’ Committee uses legal advocacy to achieve racial justice, fighting inside and outside the courts to ensure that Black people and other people of color have the voice, opportunity, and power to make the promises of our democracy real. For more information, please visit