The Supreme Court may soon reverse a core legal tenet

The hypothetical reasonable person, a scholar once observed, is “the common law’s most enduring legal fiction.” Roaming the landscape of American jurisprudence, the reasonable person crops up everywhere, from negligence lawsuits to criminal cases, including those involving self-defense. Indeed, imposing liability often pivots on what juries and judges believe this imaginary individual would have done, believed or otherwise understood under similar circumstances as a real person.

But, during oral arguments last month before the U.S. Supreme Court in the true-threats case of Counterman v. Colorado, several conservative justices hinted that the reasonable person’s days might be numbered.

Specifically, they voiced skepticism about letting jurors use a reasonable-person standard to decide when statements constitute threats of violence unprotected by the First Amendment. As The Hill reported, they fretted that today’s reasonable person, as envisioned by jurors, may be “too hypersensitive” and thus might wrongly find threats where none exist.

This notion fits snugly within dual cultural and conservative narratives in which Americans are growing emotionally thin-skinned and colleges are spawning what former U.S. Attorney General Jeff Sessions alliteratively called “sanctimonious, sensitive, supercilious snowflakes.” However, there is no reason why the sensibilities of the mythical reasonable person cannot or should not evolve with the times.

But first, here’s why the reasonable person appears center stage in Counterman. The issue that the court faces (and probably will decide by summer) regards what the government must prove to establish that a statement is a true threat.

Two options loom large. The first would require the government to show only that an objectively reasonable person — one in the position of an intended or foreseeable recipient of a statement — would understand such a statement as a threat. The second option would go further: It would demand that the government prove something about the speaker’s subjective state of mind (a mens rea or guilty mind requirement).

What does that mean? It would require the government to prove that speakers (1) actually intended their words to be understood as threats; (2) knew their words would be taken as threats; or (3) acted recklessly by consciously ignoring the risk they would be understood as threats.

The justices addressed these mens rea options during oral argument, when attorney John Elwood asserted on Billy Raymond Counterman’s behalf that adding a mens rea requirement would guard against “criminalizing misunderstanding.”

A jury convicted Counterman in 2017 under a Colorado statute for stalking that caused serious emotional distress to singer-songwriter Coles Whalen based on what the prosecution termed “waves of Facebook messages that escalated into alarming claims and aggressive invectives.” A Colorado appellate court upheld the verdict in 2021, concluding Counterman’s messages were true threats unprotected by the First Amendment. In doing so, it applied “an objective test” — the reasonable-person standard — and did not consider anything about Counterman’s subjective intent or state of mind regarding what he said to Whalen.

That seemed to bother some of the court’s conservatives. “Who is the reasonable person?” bluntly asked Justice Amy Coney Barrett of Colorado Attorney General Phil Weiser. She elaborated, querying whether it was a “general reasonable person” or whether “if something happens on a college campus, is it the reasonable college student, which might be different?”

Barrett added that maybe “nowadays people would be more sensitive” to certain content. This subtly tracks the snowflake motif noted earlier, in which today’s students are seen as “increasingly fragile and unable to deal with the friction and disappointment of social life.”

Justice Clarence Thomas similarly asserted that “we’re more hypersensitive about different things now, and people could feel threatened in different ways.” The court’s longest-serving justice was concerned that “reasonableness […] seems to now be on a sliding scale.” Justice Neil Gorsuch chimed in, noting “we live in a world in which people are […] maybe increasingly sensitive.” In doing so, he referenced the controversial concept of trigger warnings given by some professors in college classrooms to protect sensitive students (a subject perhaps on his mind because it made national headlines just two weeks prior to oral argument).

In short, the trio asserted that, unless the government must prove something about a speaker’s subjective mental state when uttering an allegedly threatening statement, it may be too easy in today’s increasingly sensitive world to strip a person of First Amendment protection under the reasonable-person standard.

There’s no doubt that adding a mens rea requirement to the true-threats doctrine would bolster First Amendment protection for speakers who use ambiguous language and claim they were joking or misunderstood. But it doesn’t follow that the Supreme Court should throw the reasonable person under the fast-moving bus of today’s culture simply because people may be more sensitive than they were in the past. Indeed, the reasonable person evolves with the times. To wit, today’s genderless reasonable person once was a reasonable man, with that shift largely occurring in the 1970s and 1980s.

Furthermore, as Phil Weiser told the court, the reasonable person is not an “eggshell,” cracking easily, or a person with “essentially idiosyncratic characteristics.” In other words, it is the perspective of a reasonable — not unreasonable — person in the position of the recipient of an alleged threat that jurors must consider.

Ultimately, it’s true that the reasonable person is a legal fiction and that people will differ about whether ambiguous messages can reasonably be understood as illicit threats or hyperbole. But oral argument in Counterman revealed something else: the belief among some justices that society is now too delicate to apply a reasonable-person standard in a way that adequately safeguards First Amendment speech interests. Today’s cultural battles over free expression and the alleged thinning of the American skin thus may well influence how the court defines a true threat later this summer.

Clay Calvert, J.D., Ph.D., is professor emeritus at the University of Florida. He held a joint appointment as a professor of law at the Fredric G. Levin College of Law and a Brechner Eminent Scholar in Mass Communication in the College of Journalism and Communications. Specializing in First Amendment and media law, Calvert has published more than 150 law journal articles on topics affecting free expression, and he is lead author of Mass Media Law (22nd ed. 2023, McGraw Hill).