Turns out the Writer’s Guild strike affected the real world’s script too… the scabs currently working on the script of life are very confused about how things are supposed to go.

That’s what I was thinking. What universe did I step into?

Barrett has actually been surprisingly reasonable in many recent rulings. In this case, though, she was, strangely, writing against the free speech protections that conservatives have been trying to use with anti-LGBT hate speech. Here are some excerpts from the NYT article:

“The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” [Kagan] wrote. “The state need not prove any more demanding form of subjective intent to threaten another.”

Justice Kagan acknowledged that “true threats,” like libel, incitement, obscenity and fighting words, are not protected by the First Amendment. But she said the risk of chilling protected speech warranted imposing an added burden on prosecutors.

“The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs — all those may lead him to swallow words that are in fact not true threats,” she wrote.

Lawyers for the state responded that it was enough to look at the words in question, how they were conveyed and the response they elicited. The speaker’s subjective intent, they said, does not matter.

Justice Kagan analyzed the question by examining how the Supreme Court had treated other categories of unprotected speech, notably libel. Noting that public figures must show at least reckless disregard of the truth — meaning subjective awareness of probable falsity — to prevail in libel cases, she said something similar was required in true-threats prosecutions.

Justice Clarence Thomas issued a brief dissent that repeated his call to reconsider New York Times v. Sullivan, the landmark 1964 libel decision interpreting the First Amendment to make it hard for public officials to prevail in libel suits.

“It is thus unfortunate,” he wrote, “that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this court’s jurisprudence.”

In a second dissent, Justice Amy Coney Barrett, joined by Justice Thomas, wrote that an objective standard was sufficient in true-threats prosecutions.

“The bottom line is this,” she wrote, quoting phrases from Justice Kagan’s opinion. “Counterman communicated true threats, which, ‘everyone agrees, lie outside the bounds of the First Amendment’s protection.’ He knew what the words meant. Those threats caused the victim to fear for her life, and they ‘upended her daily existence.’ Nonetheless, the court concludes that Counterman can prevail on a First Amendment defense. Nothing in the Constitution compels that result.”

Justice Barrett suggested that Justice Kagan’s position in the new case, Counterman v. Colorado, No. 22-138, was unprincipled.

“The reality,” she wrote, “is that recklessness is not grounded in law, but in a Goldilocks judgment: Recklessness is not too much, not too little, but instead ‘just right.’”

Responding in a footnote, Justice Kagan said she was not offended. “In law, as in life," she wrote, “there are worse things than being “just right.’”

Thomas has probably been experiencing a similar situation lately, so he’s likely eager to rule against it.

Perhaps they’ve become self aware and want to appear like legitimate judges?

Because they didn’t. They want to stifle speech, and imprison dissenters

The law didn’t require any proof of intent, so I could have claimed harassment - say as an online shop owner - from people who were upset that I ripped them off and kept emailing me.

Now that the law is nulled, Colorado will have to rewrite it to ensure that the reason they were sending me nastygrams is examined.