Offensive Speech Is Not A “True Threat”

I’ve criticized the Connecticut Supreme Court for several of its decisions over the past year, so I’m pleased to take this opportunity to say this of the Court’s pro-First Amendment decision today in State v. Krijger: “Great job!” 

In Krijger, the Court reversed the Appellate Court, which had affirmed (over Judge Douglas Lavine’s thoughtful dissent) a jury verdict against the defendant for “threatening” in the second degree, in violation of General Statutes § 53a-62(a)(3).  Truly threatening speech does not enjoy First Amendment protection, which is why it can be criminalized.  Merely offensive speech, however, enjoys First Amendment protection and cannot be criminalized. 

What makes the opinion noteworthy, however, is not its discussion of the law, which was already clear and well-established.  It was the Court’s willingness to view the evidence in the light most favorable to sustaining the jury’s verdict, yet still hold that the evidence did not support the jury’s conclusion that the defendant had made a “true threat” against the victim.  Rejecting a jury verdict on sufficiency of the evidence grounds is unusual.  The Supreme Court took its job as the ultimate protector of the First Amendment very seriously.