The internet is full of strong, impassioned, sometimes offensive language. In response to an activist’s post about being choked by a sheriff’s deputy, someone posted to Facebook, “Wow, brother they wanna hit our general. It’s time to strike back. Let’s burn this motherfucker’s house down.” And someone listening to music posted lyrics about “student bodies lying dead in the halls, a blood splattered treatise of hate.”

While this speech might be offensive — or even feel threatening — to some people, to others it is an expression of a political opinion, an unfiltered reaction to a recent event, or an attempt to rally support for a cause. The freedom to share provocative ideas and spark robust debate about political issues is essential to democracy, social justice, and progress. Our right to free speech generally protects such communications.

However, “true threats” are not protected by the First Amendment. The government can prosecute someone who intentionally threatens another person with death or serious bodily harm, and whose language is reasonably perceived as threatening. But can a speaker be convicted of making a true threat solely because some people could reasonably perceive it as threatening, regardless of the speaker’s intent? That’s the question before the Supreme Court in Counterman v. Colorado.

The ACLU and its coalition partners filed an amicus brief arguing that the First Amendment requires “subjective intent to threaten” as a necessary element of a true threat. In other words, to meet the legal threshold for a “true threat,” the speaker’s own intent must be taken into account. This would allow a jury to consider the speaker’s state of mind when the threat was made, and ensure that speakers aren’t criminally convicted for failures to predict how people might interpret their speech.

If a person could be convicted for any statement that could reasonably be perceived as threatening, regardless of whether they understood or intended the speech to be threatening, people would need to constantly monitor and tailor their speech to avoid potentially sparking fear in anyone who might foreseeably hear or read it. When people post on social media platforms, they would have to accurately predict how people with vastly different life experiences and perspectives might view their speech, or risk criminal prosecution.

Consider the Facebook poster saying “Let’s burn this motherfucker’s house down.” Some might reasonably believe the poster will set fire to the target’s house. But if the poster intended only to hyperbolically express outrage over an injustice, their speech shouldn’t be labeled as an unprotected “true threat.” Or consider a politician who says that if her opponent is elected, people might resort to “Second Amendment remedies.” Some might reasonably interpret her language as a threat to her opponent’s life, even if she intended it only as an appeal for votes.

Charged speech, however, is not an internet-era phenomenon. In 1969, a racial justice activist organizing a boycott of white-owned businesses spoke to a crowd of several hundred people and said, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” Today, an activist might tweet the same, intending only to garner solidarity. To criminally charge that person would silence them and chill those who similarly advocate for change.

Of course, even unintentionally threatening language can cause real harm. In Counterman v. Colorado, Billy Raymond Counterman sent C.W., a Colorado musician, a series of direct Facebook messages over a two-year period that made C.W. wonder if he was following her. Counterman, who is mentally ill, sent C.W. messages like “Was that you in the white Jeep?” and “I’d like to talk directly to U, I feel neglected” and “five years on FB. I miss you, only a couple physical sightings.” C.W. didn’t respond and blocked Counterman multiple times. Each time Counterman would create a new account and message C.W. again, saying, for example: “Your arrogance offends existence of anyone in my position” and “Your not being good for human relations. Die, don’t need you.” C.W. obtained a protective order and canceled some of her performances out of fear that Counterman might attend.

C.W., like many people who have been sent frightening messages online, reasonably feared for her safety. In addition to posing safety concerns, threatening language is often misogynistic, racist, or homophobic. This kind of speech causes real emotional and psychological harm. Victims, fearful of more abuse, often self-censor, leaving online spaces that once brought community and well-being.

It is essential for the government to vigorously enforce restrictions on unlawful conduct, such as prohibitions on stalking and harassment, as well as restraining order violations. But expanding the definition of “true threats” to cover speech that was never intended to threaten brings its own dangers. For example, movements for gender and racial justice often use heated rhetoric to rally support. If this speech is misunderstood as threatening and marked as a “true threat,” then activists would have to choose between risking conviction every time they say something that could be misinterpreted, and self-censoring. The fight for progress will slowly find itself silenced out of fear. This expansion could also impinge the freedom of the press. A broader legal definition of a “true threat” could come to encompass and stifle basic functions of journalism — from quoting people who hold offensive views, to publishing political cartoons, to pressing a reluctant source for comment.

As the ACLU explains in our brief, a subjective intent to threaten requirement is necessary to protect speakers from being convicted of a felony simply because someone scrolling Twitter, with a different perspective and different background, might reasonably perceive their language as threatening. We hope the court will recognize the implications of its decision for advocates, protestors, and journalists, and preserve the right to speak without fear of conviction for unintentionally threatening speech.

The United States’ border region has always borne the brunt of our most aggressive immigration enforcement efforts, including dangerous high-speed vehicle pursuits by Border Patrol agents that far too often end in serious injuries and deaths.

After years of public outcry from advocates, victims, and borderland residents, U.S. Customs and Border Protection (CBP) announced a revised vehicle pursuit policy earlier this year. This new policy, which took effect this month after a delay, includes measures that we believe can be important for safeguarding the lives of everyone in our communities. But serious questions remain about the implementation, training, and enforcement of the new policy that will be critical for its success.

Our extensive concerns about CBP’s vehicle pursuit policy reflect a tragically long and growing list of pursuits that have ended in deaths or serious injuries. The ACLU of Texas’ Fatal Encounters tracker has tallied dozens of deaths from CBP vehicle pursuits over the past decade.

In one pursuit near Deming, New Mexico last year, a Border Patrol agent conducted a dangerous and unauthorized maneuver to block the path of a vehicle on the highway. The vehicle being pursued rolled over and burst into flames, killing two and severely injuring eight others.

As one of the Border Patrol agents on the scene of the crash callously put it, “They were all thrown everywhere, bro.”

Several deadly pursuits have also taken place in Texas. In January 2020, a Border Patrol chase resulted in a fatal crash near downtown El Paso and in June that same year, another Border Patrol vehicle pursuit led to a crash, killing several people in the same location.

In the vast majority of these vehicle pursuit cases, the risk taken and harm caused by the pursuit is completely out of proportion with any suspected criminal activity.

While the revisions to CBP’s vehicle pursuit policy represent a significant improvement and an important step forward for our border communities, history suggests that robust training, oversight, and accountability will be essential to ensure compliance with this new policy.

Rebekah Zemansky / Shuttterstock.com

A critical change in the revised policy is the adoption of an “objective reasonableness” standard, meaning agents will have to consider the actual need to apprehend someone as well as the potential risk not only to the public and law enforcement but also to the occupants of the subject vehicle.

Officers and agents must now consider the government’s interest in immediately apprehending an individual, including the severity of the crime at issue and the level of threat posed by the individual.

The policy prohibits officers and agents from starting or continuing a pursuit of a vehicle that is exceeding the speed limit and appears to be overloaded, unless they have probable cause that a felony involving the use, or threatened use, of physical force or violence that poses an imminent threat has been or is about to be committed, and a reasonable belief that the immediate need to apprehend clearly outweighs the risks.

This probable-cause standard also applies to pursuits that take place in or near schools that may be in session and other areas where, because of population density or the nature of the residential or commercial structures nearby, a pursuit would put the public at increased risk.

Officers and agents are also now specifically prohibited from engaging in extremely dangerous efforts to stop a vehicle such as “pursuit immobilization techniques” maneuvers, in which a government vehicle makes intentional contact with the vehicle being pursued to cause it to spin out and stop.

Finally, the policy, which includes additional restrictions on when and how high-speed pursuits can be carried out, also creates a new review structure for vehicle pursuits, which we explore in depth in our full policy brief.

While the new policy advances key, common-sense reforms, important questions remain about how CBP will operationalize this revised policy and ensure compliance and transparency.

We urge CBP to mandate that training for authorized officers, agents, and supervisors on the revised policy be taught by skilled instructors, using effective learning techniques, to ensure that officers, agents, and supervisors are sufficiently informed of the policy revisions.

The training curriculum on the revised vehicle pursuit policy should also provide clarifications about key aspects of how the policy will be operationalized, including how “objective reasonableness” is assessed by officers and agents in the field, and how the policy relates to the agency’s existing Use of Force Policy. Additionally, the agency should take steps to ensure that the revised policy clearly sets forth the minimum required standards for officers and agents, regardless of whether any other law enforcement agencies are involved in a pursuit.

It’s also critical that CBP invest in robust data collection and analysis capabilities, and that the newly created Vehicular Pursuits Review Committee accounts for key lessons and concerns raised by incidents that result in injury or death.

Our full policy brief provides additional recommendations on the agency’s review processes. Vigorous oversight and accountability measures will be essential to ensuring that CBP’s revised vehicle pursuit policy is not merely a piece of paper, but rather a robust tool to protect and preserve human life.

As CBP Acting Commissioner Troy Miller acknowledged, vehicle pursuits “pose inherent risks.” Here in the borderlands, our communities have been living and suffering with those risks for far too long, and we are committed to reducing the harm caused by these and other aggressive immigration enforcement tactics.

The ACLU of New Mexico has further recommendations for the implementation of the revised policy available here.

Transgender people are under attack – perhaps worse than we’ve ever seen in our lifetimes – in Florida and many other parts of the nation.

The party in the supermajority of the Florida Legislature towed the agenda of Gov. Ron DeSantis in the 2023 session, passing several laws targeting lesbian, gay, bisexual, transgender, and queer (LGBTQ+) people. Transgender people have been hit hardest. 

Last month alone, the legislature banned gender-affirming treatment for minors and treats that care as “harmful,” rather than the lifesaving care that it is. Legislators banned teachers and students from using pronouns that do not match someone’s birth certificate. They barred transgender people and others from using bathrooms that correspond with their gender identity in government buildings, including in prisons. They imposed new punishments for establishments that allow minors to attend “adult live performances,” largely understood as an attack on drag shows. And their threats to the LGBTQ+ community continue. 

DeSantis and extremist Florida politicians have passed these and other laws under the guise of protecting children from what they call “wokeness.” While rarely defined, “wokeness” has become a catch-all term for what conservatives view as leftist or even socialist propaganda in the name of social justice that they believe has crept its way into the state’s institutions of power – from the classroom to the workplace to the courthouse. 

This political illusion is often described as the “culture war.” But, for transgender people and others directly in the crosshairs, it is much more. They are direct assaults on transgender and other people’s right to exist. Florida has a long history of attacking LGBTQ+ people, especially those most vulnerable among them – transgender folks and people of color.

The “wokeness” boogeyman isn’t new, either. It’s the same – or similar – script with a different cast. 

In 1959, a woman named Charlotte F. McLeod married in Miami in an unremarkable ceremony. Weeks later, the nation learned that McLeod was transgender, and her marriage made headlines. Because they rejected McLeod’s transgender identity, several institutions – including the courts, media, and church – panicked that Florida had just permitted same-sex marriage. 

As a result, McLeod was run out of town and made her way to California. She lived a difficult life and regularly endured abuse and discrimination.

This is not unlike the story of one of South Florida’s most famous families today: husband and basketball star Dwyane Wade and wife and actor Gabrielle Union, who recently relocated from Miami to California. They did so, in part, to make life safer for their transgender daughter amidst the onslaught of Florida’s anti-trans policies.

Back in 1959, when the world learned that McLeod was trangender, she got embroiled in a puritanical Cold War-era culture that treated LGBTQ+ people as threats to American families, children, and even national security. Many viewed McLeod as no different than communists who threatened to destroy the United States and the American way of life. 

By the 1970s, Miami housed some networks and organizations that helped build a community for transgender people, including the multi-ethnic Transsexual Action Organization. But by the end of the decade, the city had become ground zero for the nation’s so-called culture wars.

In 1977, Miami-based celebrity Anita Bryant launched a campaign called “Save Our Children” to undo a county-wide ordinance that had provided legal protections for lesbians, gays, and bisexuals in employment, education, and public accommodations. Bryant and her supporters argued that gay people were inherently predators who would corrupt their children. 

The language of the 1970s campaign is eerily similar to what DeSantis and other fundamentalists use today to garner support for their anti-LGBTQ+ measures.

Bryant took the issue to Miami voters, who overwhelmingly supported her argument that gay people posed a threat to children. As a result of Bryant’s support, the progressive and short-lived ordinance that offered gay and bisexual people legal protections was overturned later that year. The county would not secure those legislative protections for another two decades, in 1998. Securing similar protections for transgender people took even longer.

The county finally voted to extend the same protections based on gender identity and gender expression in late 2014. The issue, however, was met with great controversy. Many of its opponents deployed the decades-long “boogeyman” narrative that such protections reflected socialist influence and represented a danger to all children. 

The advancements hard fought to protect LGBTQ+ people, especially youth, are quickly being undone by state lawmakers. 

To protect the new generation – which certainly includes LGBTQ+ youth – the past is a prologue. If we dare to create a more perfect union, we must learn from our history and stand firmly in support of one another to achieve full liberation for us all.

Julio Capó, Jr. teaches history at Florida International University and is the author of the award-winning book "Welcome to Fairyland: Queer Miami before 1940."