Kerr on Reckless Speech in the Shadow of the Constitution @PKUSTL @SHULawReview

Andrew Jensen Kerr, Peking University School of Transnational Law, is publishing Reckless Speech in the Shadow of the Constitution in volume 55 of the Seton Hall Law Review. Here is the abstract.

In this Article, I explore the question of whether and to what extent a seeming threat may be justified by its potential social utility. This past summer, in Counterman v. Colorado, the U.S. Supreme Court held for the first time that the First Amendment requires a threats statute to include at minimum a “recklessness” mental state. This clarification was long overdue. However, Justice Kagan’s majority opinion ignored an important sense of how and why people express themselves, so as to make art. In concurrence, Justice Sotomayor observes how rap (in constitutional terms, “art speech”) can be misinterpreted when a speaker does not share the same cultural background as her audience. I connect this art speech dilemma to an undertheorized aspect of criminal law: how to interpret the normative component of our recklessness mens rea test that evaluates whether an actor took an unjustified risk of causing harm. Missing from Counterman, and the broader literature, is an analysis of whether making provocative art, or attempting to make provocative art, is at all justified by the constitutional status of the speech act and how it may further the underlying value system of the First Amendment. The rub for the First Amendment is that one of its basic purposes is to protect speech that we don’t like very much. This creates a very complicated analysis for the juror who is tasked with resolving whether, in my terms, a superficial threat is not-so-unjustified so that the speaker does not merit punishment. Delegating this kind of loaded question to a lay juror invites legal process concerns, like those framed by constitutional fact doctrine. But, in the end, I suggest that these academic concerns may have negligible consequence. Jurors can still rely on their folk sense of criminal responsibility when making culpability evaluations in the shadow of the Constitution, where speech crimes like true threats reside.

Download the article from SSRN at the link.