TOPEKA, Kan. — Kansas legislators went too far by criminalizing violent language not backed up by an intent to act, the state’s highest court ruled Friday in striking down part of a law that it says violates free speech rights.
The Kansas Supreme Court kept in place portions of the 2010 law banning “true threats” but struck down the provision making it a felony for someone to be “reckless” in using threatening language that makes others afraid, even if the person making the comments doesn’t intend violence.
The justices said that part of the law is so broad that it might apply to the speech of political protesters, violating the First Amendment of the U.S. Constitution. The court said the state still can prosecute people who intentionally threaten of violence.
The high court overturned the convictions of two men over threatening language they used in incidents in 2014. The justices said the unconstitutional part of the Kansas law “encompasses more than true threats.”
“The provision significantly targets protected activity,” Justice Marla Luckert wrote in one of the court’s decisions. “And its language provides no basis for distinguishing circumstances where speech is constitutionally protected from those where the speech does not warrant protection under the First Amendment.”
The Kansas attorney general’s office, which was involved in both cases, said it was reviewing the decisions.
Clayton Perkins, the public defender who represented both men in their appeals, said the court’s actions protect people who are misunderstood or whose comments are taken out of context. He said some cases involving reckless threats involve people with mental issues or even schoolchildren.
He said the decision won’t protect people who make real threats, “which is the good line that the Kansas Supreme Court drew, protecting speech but not putting people at risk.”
“Jurors are really functionally equipped to figure out whether someone was acting intentionally or not,” Perkins said.
The issue of the criminal threat law’s constitutionality arose first in the case of Timothy Boettger, convicted in Douglas County of violating the part of the law against using reckless, threatening language. He made angry comments to an acquaintance at the convenience store where the other man worked.
Boettger was upset over the shooting of his daughter’s dog and what he saw as the failure of the local sheriff’s office to investigate. His acquaintance testified that Boettger told him that he would end up finding his father, who worked for the sheriff, “in a ditch.” Boettger denied making a threat but was convicted and sentenced to 12 months’ probation.
Perkins argued that under the law, a protester could be criminally charged for reciting anti-police lyrics on the classic hip hop album “Straight Outta Compton” in the presence of law enforcement officers. The Supreme Court called the argument “persuasive.”
The second case before the court involved a Montgomery County man, Ryan Robert Johnson, convicted of making a threat and sentenced to 14 months in prison over an incident in which he told his mother that he would burn her property and kill her.
During Johnson’s trial, both his wife and mother downplayed the incident, testifying that family members commonly threatened to kill each other without meaning it. The Supreme Court said it wasn’t clear whether jurors concluded the threat was intentional or Johnson merely was reckless and ordered a new trial.