SCOTUS increasing 'true threat' burden of proof to convict could impact Lee County 10-year-old's trial

Credit: WINK News

The United States Supreme Court hands down its decision about when you can be prosecuted for threatening speech online. The justices say it’s enough for prosecutors to show that a person’s speech was reckless, even it wasn’t deliberately threatening. The Colorado case the high court was considering didn’t meet the bar, so the conviction was overturned. The question we’re digging into tonight: What impact could this decision have on the trial of the Cape Coral boy accused of making threats?

Constitutional law and public safety experts tell me they’re not surprised by the U.S. Supreme Court’s decision and believe it will make it even harder for our local state attorney’s office to convict Daniel Marquez. Let’s take a look at that case they ruled on.

It’s Counterman v. Colorado. In short, a man was sent to prison in 2017 for stalking a woman through Facebook messenger for years. The woman said those messages scared her.

Billy Ray Counterman said he didn’t intend to threaten her and was exercising free speech. His attorney also said Counterman suffered from mental health issues which prevented him from understanding the impact his messages were having on that woman.

The high court overturned Counterman’s conviction in a 7-2 ruling.

Associate Justice Elena Kagan explained why. In the opinion, she wrote, “The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements. We hold that it does, but that a mental state of recklessness is sufficient. The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.”

Professor Lyrissa Lidsky from the University of Florida Levin College of Law predicted this outcome a week ago.

“I expect they’re going to require at least recklessness,” said Lidsky.

After reading the Supreme Court’s opinion:

“Justice Kagan very carefully defines it as conscious disregard of a substantial risk that it will be perceived as a threat,” said Lidsky.

Lidsky believes Daniel should have never been charged with a felony.

“I’m just shocked that this case is continuing and the effect on the life of this young man,” said Lidsky. “I don’t think this child should be convicted on this—at best—ambiguous text.”

In May of 2022, Daniel sent his 10-year-old friend texts he described as a joke about a scam involving money and guns, followed by a reference to a school event. Sheriff Carmine Marceno said he “felt” the boy was really texting a school threat. Daniel was locked up and charged with a second-degree felony.

Marceno won’t say anymore about the case, and to this day, Daniel tells me he doesn’t understand why he’s in trouble.

“I never did anything wrong,” said Daniel.

Professor Lidsky explains why the Supreme Court decision should further compel Judge Carolyn Swift to dismiss the charge against Daniel.

“You’re going to have to look at the intent standard they set and look at the fact that this is a 10-year-old testifying he meant it as a joke,” said Lidsky. “That should mean, he is absolved of responsibility for this, that it’s not going to be convicted as a felony.”

She added, “I think people need to be outraged by this and demand of their public officials that we use our criminal justice resources for serious crimes, and not to prosecute 10-year-olds who did something maybe ill-considered and stupid,” said Lidsky.

We’ll see what happens at Daniel’s trial in July.

I will be there.

Want to weigh in? Email me: celine.mcarthur@winknews.com

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