In the Interest of: J.J.M., Appeal of: J.J.M.

[J-84-2020] [MO:Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

IN THE INTEREST OF: J.J.M., A MINOR : No. 23 MAP 2020
:
: Appeal from the Order of the
APPEAL OF: J.J.M., A MINOR : Superior Court at No. 1245 MDA
: 2018 dated September 10, 2019
: affirming the Order of the Luzerne
: County Court of Common Pleas,
: Juvenile Division, at No. CP-40-JV-
: 0000119-2018 dated May 14, 2018.
:
: ARGUED: October 20, 2020

CONCURRING OPINION

JUSTICE TODD DECIDED: December 21, 2021

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 1-2. 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, 190 A.3d 1146, 1154 (Pa. 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 (1942); incitement to imminent lawlessness, Brandenburg v.

Ohio, 395 U.S. 444 (1969) (per curiam); obscenity, Miller v. California, 413 U.S. 15 (1973);

defamation, New York Times v. Sullivan, 376 U.S. 254 (1964); and child pornography,

fraud, and other speech “integral to criminal conduct,” United States v. Alvarez, 567 U.S.

709 (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 (1992).

[J-84-2020] [MO: Dougherty, J.] - 2
 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 (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 (internal quotation marks and citation omitted).

Based on his statement, Watts was convicted of threating 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, 807 A.2d 847, 854 (Pa. 2002), abrogated by Commonwealth v. Knox, 190 A.3d

1146 (Pa. 2018), J.S., an eighth-grade student, created a website from his home

[J-84-2020] [MO: Dougherty, J.] - 3
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

[J-84-2020] [MO: Dougherty, J.] - 4
“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 (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, 553 S.E.2d 738,

744 (Va. 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. 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] (“political hy[p]erpole” is not a true threat);
R.A.V. v. City of St. Paul, [505 U.S. 377, 388 (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

[J-84-2020] [MO: Dougherty, J.] - 5
 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 (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 (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

[J-84-2020] [MO: Dougherty, J.] - 6
 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 (quoting R.A.V., 538 U.S. at 388).

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 (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.

[J-84-2020] [MO: Dougherty, J.] - 7
 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 (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. 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
(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.

[J-84-2020] [MO: Dougherty, J.] - 8
 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 (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.

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 (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.
More than a decade after Black, in Elonis v. United States, 135 S. Ct. 2001 (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

[J-84-2020] [MO: Dougherty, J.] - 9
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 15. 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,

[J-84-2020] [MO: Dougherty, J.] - 10
 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).
190 A.3d at 1156.

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

[J-84-2020] [MO: Dougherty, J.] - 11
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) (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

[J-84-2020] [MO: Dougherty, J.] - 12
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).1 After examining the positions adopted

by the various courts of appeals, Justice Wecht endorsed the view adopted by the Ninth

Circuit in Cassel, suggesting:

[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.

1As 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.

[J-84-2020] [MO: Dougherty, J.] - 13
 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).

[J-84-2020] [MO: Dougherty, J.] - 14
 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, 137 S. Ct.

853 (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

[J-84-2020] [MO: Dougherty, J.] - 15
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). 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
threating 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

[J-84-2020] [MO: Dougherty, J.] - 16
guidance from the high Court, and, as a result, that we must “chart our own course.”

Majority Opinion at 27. 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 . . . (“political hy[p]erpole” is not a true threat);
R.A.V. v. City of St. Paul, 505 U.S.[ ] at 388 . . . . The speaker
need not actually intend to carry out the threat. Rather, a
prohibition on true threats “protect[s] individuals from the fear
of violence” and “from the disruption that fear engenders,” in
addition to protecting people “from the possibility that the
threatened violence will occur.” 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. 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 (O’Connor, J., plurality, joined by Rehnquist,

C.J., Stevens, Breyer, JJ. ); id. at 372 (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 (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”).

[J-84-2020] [MO: Dougherty, J.] - 17
 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:

[J-84-2020] [MO: Dougherty, J.] - 18
 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) (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]. 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 [ ]. 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.
767 F.3d at 978-79.2

2 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.

[J-84-2020] [MO: Dougherty, J.] - 19
 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.

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.

[J-84-2020] [MO: Dougherty, J.] - 20
Boettger, 450 P.3d 805 (Kan. 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 (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,3 and, further, that this Court in Knox suggested

3 See State v. Taupier, 193 A.2d 1 (Conn. 2018) (holding recklessness standard
constitutional in a true threat context), cert. denied, 139 S. Ct. 1188 (2019); Major v. State,
800 S.E.2d 348 (Ga. 2017) (upholding recklessness standard post-Black).

[J-84-2020] [MO: Dougherty, J.] - 21
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:

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).4

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 26.

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 26 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 28 (observing that the high Court has “recognized

4 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.

[J-84-2020] [MO: Dougherty, J.] - 22
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.

[J-84-2020] [MO: Dougherty, J.] - 23