U.S. Supreme Court

Chemerinsky: Oral arguments conclude with important free speech, civil rights cases

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Erwin Chemerinsky. Photo by Jim Block.

This month, the U.S. Supreme Court will conclude oral arguments for the October 2022 term. Two of the cases to be heard, one constitutional and one statutory, seem particularly important. They concern the First Amendment and Title VII of the 1964 Civil Rights Act.

What is a ‘true threat’?

Over a half-century ago, in United States v. Watts (1969), the court held that true threats are speech unprotected by the First Amendment. Robert Watts, then 18, attended a rally and stated, “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.” Watts was arrested and convicted for violating a federal law that makes it a crime to “knowingly and willfully” threaten the life of the president.

The Supreme Court upheld the federal statute but reversed Watts’ conviction. The court said true threats are unprotected by the First Amendment, but they must be distinguished from speech that is just hyperbole. The court concluded that Watts’ statement was “political hyperbole.” The court explained, “The language of the political arena … is often vituperative, abusive and inexact.” Considering the “context, and regarding the expressly conditional nature of the statement and the reaction of the listeners,” the court ruled that Watts’ statement was not a true threat.

The court reaffirmed that true threats are not protected by the First Amendment in Virginia v. Black (2003), a case involving cross burning. But the court never has articulated the standard for determining what constitutes a true threat under the First Amendment. That is the issue before the court in Counterman v. Colorado, to be argued April 19. (I am among group of law professors who signed an amicus brief supporting Colorado.)

For more than two years, Billy Raymond Counterman sent messages over Facebook to a singer, identified as “C.W.” Sometimes he sent several messages a day; sometimes there were long gaps between messages. C.W. commented that it was like Counterman was “trying to continue a conversation with me … which I am not engaging in.” Some of Counterman’s messages expressed frustration that C.W. was not responding to him. Over time, his messages became more aggressive. C.W. said she became concerned, “canceled a few shows” and began taking security measures. C.W. filed a complaint with the police.

Counterman was prosecuted under a Colorado law that provides for criminal liability if speech “would cause a reasonable person to suffer serious emotional distress.” The Colorado Supreme Court previously had held in People v. Cross, that conviction requires proof only that the speaker “knowingly” make repeated communications and does not “require that a perpetrator be aware that his or her acts would cause a reasonable person to suffer serious emotional distress.”

Counterman was convicted and sentenced to four and a half years in prison. The Colorado Court of Appeals affirmed the conviction, and the Colorado Supreme Court denied review.

The issue before the Supreme Court is the standard for determining what is a “true threat.” Colorado and other courts use an objective test: Would a reasonable person feel threatened under the circumstances? But a different test is used by many other courts, requiring proof that the defendant subjectively intended to threaten another person.

The Supreme Court faced this question previously in Elonis v. United States (2015). That case involved a man, Anthony Douglas Elonis, who posted angry messages on Facebook directed at his ex-wife. He said he was going to go to a local kindergarten and commit an act of violence. He was convicted in federal court of making threats in interstate commerce. The jury had been instructed to use an objective test as to whether a reasonable person would feel threatened by the statements.

The Supreme Court, in an 8-1 decision, reversed Elonis’ conviction but did not reach the First Amendment issue. Chief Justice John Roberts wrote for the court, and only Justice Clarence Thomas dissented. The court held that the mens rea under the federal statute making it a crime to make a threat in interstate commerce required proof of a subjective intent to threaten.

In Counterman, the court faces the First Amendment question that it did not resolve in Elonis. The more speech protective approach would be to hold that the First Amendment requires proof of a subjective intention to threaten. But the court may want to do more to restrict speech that causes harm and say there is no First Amendment right to cause another person to reasonably fear for his or her safety, choosing the objective approach of the Colorado Supreme Court.

What is ‘reasonable accommodation’ of religion?

Title VII of the 1964 Civil Rights Act prohibits employment discrimination on the basis of race, sex, color or religion. The statute requires that employers accommodate their employees’ religious observance and practice unless an employer demonstrates that such accommodation would cause an “undue hardship.”

In Trans World Airlines v. Hardison (1977), the Supreme Court held that the “undue hardship” standard is met whenever the accommodation would require more than a trivial or minimal burden. The court said employers could deny religious accommodations that impose “more than a de minimis cost.” In Groff v. DeJoy, to be argued April 18, the court will consider whether to overrule this test and adopt one that is more protective of religious freedom.

Gerald Groff is a United States Postal Service employee who refused to work on Sundays, even when no one else could be found to cover for him. The district court ruled against Groff and the 3rd Circuit affirmed, declaring: “Exempting Groff from working on Sundays caused more than a de minimis cost on USPS because it actually imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale at both the Holtwood Post Office and the Lancaster Annex hub.”

The Supreme Court granted certiorari on two questions: “Whether the court should disapprove the more-than-de-minimis-cost test for refusing Title VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison; and “whether an employer may demonstrate ‘undue hardship on the conduct of the employer’s business’ under Title VII merely by showing that the requested accommodation burdens the employee’s coworkers rather than the business itself.”

In dissents from the denial of certiorari in other cases, Justices Thomas, Samuel Alito and Neil Gorsuch have urged reconsideration of the test from TWA v. Hardison for determining what is a reasonable accommodation of religion. Groff argues the phrase “undue hardship” “must mean significant difficulty or expense.” If the court adopts this test, it also will need to indicate what is sufficient to meet it and whether the focus is solely on the cost to the employer or whether it can consider the burden on other employees.

The Roberts court has greatly expanded protections for free exercise of religion under the First Amendment in recent terms. This case will give the opportunity to consider doing so under Title VII in the employment context.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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