TOPEKA – (June 22, 2020) – The U.S. Supreme Court today declined to review two earlier Kansas Supreme Court decisions that ruled Kansas’ reckless criminal threat statute violates the First Amendment to the U.S. Constitution, Attorney General Derek Schmidt said.
The Kansas Supreme Court in two separate cases last October invalidated the state's reckless criminal threat statute and overturned the convictions of two individuals for violating it. One case involved a threat of violence directed at a law enforcement officer and the other a threat of violence uttered in a family relationship. The Kansas Supreme Court ruled that the First Amendment’s free speech protections require the state to prove that the person uttering the threat specifically intended to cause fear in the victim.
The attorney general in November formally notified the Kansas Supreme Court of his decision to appeal, putting further proceedings in both cases on hold until the U.S. Supreme Court decided whether to review them. Schmidt’s decision to appeal was backed by a bipartisan coalition of 17 state and territory attorneys general and the Kansas Coalition Against Sexual and Domestic Violence, Legal Momentum and National Organization for Victim Assistance.
Justice Clarence Thomas, dissenting from the Court’s decision to deny review, wrote, “In my view, the Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate. It appears to follow that threats of violence made in reckless disregard of causing fear may be prohibited. The Kansas Supreme Court reached the opposite conclusion by overreading our decision in [Virginia v. Black], which did not answer the question presented here.”
The U.S. Supreme Court grants only a small number of requests to review lower court cases, typically about 1 percent of those it receives each year. By law, the attorney general’s office represents Kansas in matters before the U.S. Supreme Court.
The two cases are State v. Boettger, which arose in Douglas County, and State v. Johnson, which arose in Montgomery County. With today’s decision by the U.S. Supreme Court not to review the cases, the Kansas Supreme Court’s decision overturning the convictions and invalidating part of K.S.A. 21-5415 is upheld.