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The Supreme Court in a 7-2 decision tossed a Colorado man’s stalking conviction on Tuesday in a case that defines when states can prosecute “true threats” not protected by the First Amendment.
Justice Elena Kagan, writing for the majority, rejected Colorado’s test that would weigh how an objective, reasonable person would perceive the statement and would not consider the intent of the sender.
Kagan wrote that states must prove the speaker’s recklessness for the threat to not be protected, a middle ground between the two parties’ proposals.
Kagan’s decision was joined by conservative Justices Samuel Alito, Brett Kavanaugh and Chief Justice John Roberts, as well as liberal Justice Ketanji Brown Jackson. Liberal Justice Sonia Sotomayor and conservative Justice Neil Gorsuch agreed with tossing the man’s conviction but they split with the majority in its ruling about true threats more broadly.