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University of Miami Law Review

Abstract

Domestic violence intersects with constitutional, criminal, and civil law in ways that often present challenges for jurists seeking to reconcile conflicting interests in promoting victim safety and protecting the legal rights of those accused of abuse. One current issue presenting such tensions relates to “true threats” of violence which the U.S. Supreme Court considers to be among the categories of speech receiving only limited First Amendment protection. The Supreme Court has yet to indicate what level of intent would be constitutionally sufficient for conviction of a speaker of a true threat and the circuit courts have split on this issue. While a decision on the constitutionally requisite mens rea for a true threat will impact a broad range of individuals and groups, it will have a substantial effect on domestic violence victims. Domestic violence victim advocates have generally argued that offering minimal free speech protections for true threats will best serve victims’ interests and, in the context of civil protection order cases, this approach is indeed optimal. However, victims hold varying perspectives on the desirability of criminal prosecution as a response to domestic violence. Moreover, rhetorical threats of violence can add value to political protest speech, as seen in rap music and other art forms, and thereby aid efforts to combat broader societal problems which contribute to domestic violence. As a result, a low mens rea standard for true threats in all cases would undermine the goals of many domestic violence victims and could chill public dissent on issues impacting them.

Supreme Court precedents addressing other categories of unprotected speech, particularly defamation, offer useful guidance on the resolution of this question. Specifically, the Court’s caselaw suggests that applying a heightened mens rea requirement for public protest context threats—threats against public officials or figures communicated in a public forum as part of a discussion on matters of public concern—versus lower intent standards for threats in other contexts represents the optimal balance between protecting threat victims and respecting free speech rights.

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