1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,387

STATE OF KANSAS,

Appellee,

v.

TIMOTHY C. BOETTGER,

Appellant.

SYLLABUS BY THE COURT

1.

The freedom of speech referred to in the First Amendment to the United States 

Constitution does not include a freedom to disregard restrictions on certain well-defined 

and narrowly limited categories of speech that the government may regulate and, in some 

circumstances, punish. A true threat falls within one category of speech the government

may punish. 

2.

True threats encompass those statements where the speaker means to communicate 

a serious expression of an intent to commit an act of unlawful violence to a particular 

individual or group of individuals. The speaker need not intend to commit violence. 

3.

The portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a conviction if a 

threat of violence is made in reckless disregard for causing fear is unconstitutionally 

overbroad because it punishes conduct that may be constitutionally protected under some 

circumstances.
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Review of the judgment of the Court of Appeals in an unpublished opinion filed June 23, 2017. 

Appeal from the Douglas District Court; RICHARD M. SMITH, judge. Opinion filed October 25, 2019.

Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is 

reversed. 

Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause and was on the brief

for appellant. 

Kate Duncan Butler, assistant district attorney, argued the cause, and Charles E. Branson, district 

attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: The First Amendment to the United States Constitution prohibits the 

government from abridging our freedom of speech. But that freedom of speech is not 

without limits. The United States Supreme Court has recognized certain well-defined and 

narrowly limited categories of speech that the government may restrict and even 

criminally punish. One such category is that of a true threat. This appeal raises questions 

about what constitutes a true threat and, more specifically, whether the only way to make 

a true threat is to actually intend to cause fear. Timothy C. Boettger raises these questions 

by challenging the constitutionality of a provision in the Kansas criminal threat statute, 

K.S.A. 2018 Supp. 21-5415(a)(1), that allows for a criminal conviction if a person makes 

a threat in reckless disregard of causing fear. We hold this reckless disregard provision is 

unconstitutionally overbroad, and we reverse Boettger's conviction because it is based 

solely on that unconstitutional provision. 
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FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Boettger of one count of criminal threat for statements he made 

to Cody Bonham. Boettger frequented the convenience store where Bonham worked and

often spoke with Bonham and another employee, Neil Iles. 

On the night of the incident, Boettger came into the store and bought a cup of 

coffee. He spoke to Iles for a few minutes near the cash register. He told Iles he was upset

because he had found his daughter's dog in a ditch. The dog had died from a gunshot

wound, and Boettger was angry the sheriff's department had not investigated. Iles 

recalled Boettger saying "these people . . . might find themselves dead in a ditch 

somewhere." Iles thought Boettger was referring to the shooter. Based on past 

conversations, Iles knew Boettger often had an intense way of speaking and a tendency to 

get upset. Iles thought Boettger was no more upset than he had been in other situations, 

and Iles perceived Boettger's reaction as a general complaint about the sheriff's 

department's inaction. 

Boettger walked out of the store but soon came back. At that time, Bonham was 

stocking a shelf in the aisle nearest to the door. Boettger and Bonham were wellacquainted, having visited between 600 and 800 times over the course of the previous 

four years. Boettger also knew Bonham's family. He had dated Bonham's aunt and he had 

known Bonham's father since high school. Boettger knew Bonham's father was a 

detective in the Douglas County Sheriff's Office. 

Like Iles, Bonham knew Boettger had an intense way of speaking about certain 

subjects. But on this occasion, Bonham felt Boettger was unusually intense as he told 

Bonham about being upset because of what happened to his daughter's dog and the 

sheriff's department's failure to investigate. Boettger clenched his fists, and he was visibly 
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shaking. Bonham further testified that Boettger spoke as he approached, saying, "You're 

the man I'm looking for." According to Bonham, Boettger continued by saying "he had 

some friends up in the Paseo area in Kansas City that don't mess around, and that I was 

going to end up finding my dad in a ditch." Boettger ended the conversation by saying,

"'You remember that.'" Iles saw Boettger speaking with Bonham but could not hear their 

conversation.

After Boettger left, Iles noticed that Bonham appeared to be distraught. Bonham

relayed what happened and called his father to tell him about the incident. Bonham

drafted an email to record the details of his conversation with Boettger and called the 

police to report the incident. At trial, Boettger admitted he knew Bonham's father was a 

member of the sheriff's department but denied threatening to harm him. He asserted 

Bonham was mistaken about what he said. Boettger denied mentioning friends from the 

Paseo area, saying instead that he had referred to friends in North Kansas City. Boettger 

generally claimed he had no intent to threaten anyone and did not mean Bonham or his 

family any harm. He felt he was on good terms with the family based on his past 

interactions and relationship with Bonham's father and aunt. 

The district court instructed the jury a conviction required finding that Boettger 

"threatened to commit violence and communicated the threat with reckless disregard of 

the risk of causing fear in Cody Bonham." The jury convicted Boettger of one count of 

reckless criminal threat under K.S.A. 2016 Supp. 21-5415(a)(1). Boettger timely 

appealed, raising five arguments. The Court of Appeals rejected his arguments and 

affirmed his conviction and sentence. See State v. Boettger, No. 115,387, 2017 WL 

2709790, at *1 (Kan. App. 2017) (unpublished opinion).

Boettger timely petitioned for review, raising the same five arguments he had 

made before the Court of Appeals. This court granted review but only on three of the 
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issues: (1) whether the reckless form of criminal threat under K.S.A. 2018 Supp. 21-

5415(a)(1) is unconstitutionally overbroad; (2) whether the reckless threat provision is 

unconstitutionally vague; and (3) whether the jury instruction on the elements of reckless 

criminal threat was clearly erroneous.

ANALYSIS

The three issues before this court all relate to Kansas' criminal threat statute, 

K.S.A. 2018 Supp. 21-5415(a). There, the Legislature defined "criminal threat" to include 

a threat to "(1) [c]ommit violence communicated with intent to place another in fear . . . 

or in reckless disregard of the risk of causing such fear." Boettger's arguments are 

specific to the last portion of this definition—a threat made in reckless disregard of the 

risk of causing fear. 

In his first two arguments, Boettger asserts the reckless criminal threat provision is 

both unconstitutionally overbroad and vague. Issues about the constitutionality of a 

statute present questions of law over which this court has unlimited review. State v. 

Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000) (overbreadth and vagueness). Boettger

carries the burden to establish the statute is unconstitutional. See State v. Williams, 299 

Kan. 911, 920, 329 P.3d 400 (2014).

Before addressing Boettger's arguments, we must consider whether he has 

preserved his constitutional challenges for appellate review. Generally, a party cannot 

raise an issue for the first time on appeal, and Boettger did not present the arguments to 

the district court. See Williams, 299 Kan. at 929. Even so, Boettger argued to the Court of 

Appeals that both his overbreadth and vagueness challenges fell within recognized 

exceptions to the preservation rule. He specifically pointed to exceptions allowing a party 

to raise a constitutional argument for the first time on appeal if it presents a question of 
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law or if consideration of it is necessary to prevent the denial of a fundamental right. See

State v. Herbel, 296 Kan. 1101, 1116, 299 P.3d 292 (2013). The Court of Appeals 

accepted those justifications. See Boettger, 2017 WL 2709790, at *2, 5. It also concluded

Boettger had standing to raise the argument that K.S.A. 2018 Supp. 21-5415(a)(1) makes 

unlawful constitutionally protected conduct even though he has not asserted that he 

himself was engaged in a protected activity. See Williams, 299 Kan. at 919 (holding a 

litigant has standing to assert overbreadth challenge that seeks to protect First 

Amendment rights of third parties). 

The State did not cross-petition for review to ask us to consider either of these 

holdings. When a party does not cross-petition for review on an issue decided adversely 

to that party by the Court of Appeals, we deem it as settled on review. Ullery v. Othick, 

304 Kan. 405, 415, 372 P.3d 1135 (2016) (Court of Appeals holding not included in 

petition or cross-petition for review not before this court); see Supreme Court Rule 8.03 

(h)(1) (2018 Kan. S. Ct. R. 56).

We, therefore, consider his constitutional challenges to the statute. 

ISSUE 1: K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad. 

Boettger first argues the reckless form of criminal threat criminalizes speech

protected under the First Amendment to the United States Constitution and is therefore 

overbroad. "[A]n overbroad statute makes conduct punishable which under some 

circumstances is constitutionally protected." Whitesell, 270 Kan. 259, Syl. ¶ 6. A party 

arguing a statute is overbroad must show "(1) the protected activity is a significant part of 

the law's target, and (2) there exists no satisfactory method of severing" constitutional 

applications of the law from unconstitutional ones. 270 Kan. 259, Syl. ¶ 6; see Dissmeyer 

v. State, 292 Kan. 37, 40-41, 249 P.3d 444 (2011); see also, e.g., Houston v. Hill, 482 
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U.S. 451, 459, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987) (A statute "that make[s] 

unlawful a substantial amount of constitutionally protected conduct may be held facially 

invalid".); Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S. Ct. 2294, 33 L. Ed. 2d 

222 (1972) (A statute may be overbroad "if in its reach it prohibits constitutionally 

protected conduct.").

To determine whether the reckless disregard provision is overbroad, we must 

consider the scope of speech protected by the First Amendment. 

1.1 First Amendment protections 

The First Amendment to the United States Constitution provides: "Congress shall 

make no law . . . abridging the freedom of speech." U.S. Const. amend. I. This free 

speech protection extends to state laws through the Equal Protection Clause of the 

Fourteenth Amendment. See Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 

S. Ct. 2286, 33 L. Ed. 2d 212 (1972). "If there is a bedrock principle underlying the First 

Amendment, it is that the government may not prohibit expression of an idea simply 

because society itself finds the idea itself offensive or disagreeable." Texas v. Johnson, 

491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989).

"From 1791 to the present, however, our society, like other free but civilized 

societies, has permitted restrictions upon the content of speech in a few limited areas."

R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S. Ct. 2538, 120 L. Ed. 2d 305 

(1992). These limited classes consist of "well-defined and narrowly limited" speech or 

expressive conduct that has "no essential part of any exposition of ideas, and are of such 

slight social value as a step to truth that any benefit that may be derived from them is 

clearly outweighed by the social interest in order and morality." Chaplinsky v. New 

Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). Classes of speech 
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the government may punish include obscenity, defamation, fighting words, incitement to 

imminent breach of the peace, and "true threats." See Virginia v. Black, 538 U.S. 343, 

359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003); R.A.V., 505 U.S. at 383. The United 

States Supreme Court has "recognized that 'the freedom of speech' referred to by the First 

Amendment does not include a freedom to disregard these traditional limitations." 505 

U.S. at 383. 

Even though governmental restrictions on these categories of speech may be 

constitutional, they can also go too far and result in an infringement of First Amendment 

rights. The United States Supreme Court dealt with such a situation in R.A.V., 505 U.S. 

377. 

R.A.V., a minor, was convicted of violating St. Paul, Minnesota's Bias-Motivated 

Crime Ordinance. The ordinance prohibited displaying a symbol if one knows or has 

reason to know it "arouses anger, alarm or resentment in others on the basis of race, 

color, creed, religion or gender." The United States Supreme Court accepted the 

Minnesota Supreme Court's determination that the ordinance applied only to fighting 

words, as defined in Chaplinsky, 315 U.S. at 572 ("Fighting words" are "those which by 

their very utterance inflict injury or tend to incite an immediate breach of the peace."). 

And Chaplinsky held that the category of fighting words is one classification that "'is not 

in any proper sense communication of information or opinion safeguarded by the 

Constitution.'" 315 U.S. at 572 (quoting Cantwell v. State of Connecticut, 310 U.S. 296, 

310, 60 S. Ct. 900, 84 L. Ed. 1213 [1940]). Even so, the Court held the ordinance 

violated the First Amendment because it regulated the content of the speech—that is, it 

prohibited speech "solely on the basis of the subjects the speech addresses." R.A.V., 505 

U.S. at 381. 
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The R.A.V. Court recognized that some United States Supreme Court decisions 

could be read as holding that fighting words were categorically unprotected by the First 

Amendment. 505 U.S. at 383; see, e.g., Chaplinsky, 315 U.S. at 571-72 ("There are 

certain well-defined and narrowly limited classes of speech, the prevention and 

punishment of which have never been thought to raise any Constitutional problem."). But 

the Court noted that these statements must be read in context and, in context, they were 

meant only as a "shorthand." 505 U.S. at 383. That shorthand, the Court explained,

should not be taken to mean that all prohibitions against fighting words, obscenity, or 

libel are constitutional because the Court's holding must be limited to the specific 

circumstances of a case. Outside those circumstances, a restriction targeting one of those 

categories of speech may be unconstitutional and will be if it discriminates based on 

content. Thus, for example, "the government may proscribe libel; but it may not make the 

further content discrimination of proscribing only libel critical of the government." 505 

U.S. at 383-84. The R.A.V. Court recognized that "the prohibition against content 

discrimination that we assert the First Amendment requires is not absolute," and it then 

discussed several exceptions. 505 U.S. at 387-90. Ultimately, the discrimination does not 

violate the Constitution if "the nature of the content discrimination is such that there is no 

realistic possibility that official suppression of ideas is afoot." 505 U.S. at 390. 

1.2 True-threat doctrine

The United States Supreme Court has explained that the same tension can arise 

when the government attempts to criminalize "true threats." In Watts v. United States, 

394 U.S. 705, 707, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969), the United States Supreme 

Court thus held that "a statute such as this one, which makes criminal a form of pure 

speech, must be interpreted with the commands of the First Amendment clearly in mind. 

What is a threat must be distinguished from what is constitutionally protected speech." In 

that case, an 18-year-old protesting at a public rally after having received his draft 
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classification was charged with knowingly and willfully threatening the President of the 

United States. The young man had said, "'If they ever make me carry a rifle the first man 

I want to get in my sights is L.B.J.'" 394 U.S. at 706. The United States Supreme Court 

explained the statement was political hyperbole and not a "true 'threat.'" 394 U.S. at 708.

The true-threat doctrine mentioned in Watts is the focus of this case. The United 

States Supreme Court more fully explored the doctrine in Black, 538 U.S. 343. There, the 

Court again used the term "true threat" to differentiate between protected and unprotected 

speech, defining the term in a sentence that has become the focus of much of Boettger's 

and the State's arguments. It stated: "'True threats' encompass those statements where the 

speaker means to communicate a serious expression of an intent to commit an act of 

unlawful violence to a particular individual or group of individuals." 538 U.S. at 359. The 

speaker need not intend to commit violence. "Rather, a prohibition on true threats 

'protect[s] individuals from the fear of violence' and 'from the disruption that fear 

engenders,' in addition to protecting people 'from the possibility that the threatened 

violence will occur.'" 538 U.S. at 360.

1.3 Boettger's contentions—matters of first impression

Boettger essentially contends that under Virginia v. Black's definition of "true 

threat" set out above, he can be found guilty of making a true threat—one the First 

Amendment does not protect—only if he possessed the subjective intent to both (1) utter 

threatening words and (2) cause another to fear the possibility of violence. He further 

argues K.S.A. 2018 Supp. 21-5415(a)(1) is overbroad because it encompasses more than 

a true threat and could punish someone for uttering distasteful words that are not a true 

threat by punishing someone who speaks "in reckless disregard of the risk of causing 

such fear" of violence. 
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This court has never considered whether a conviction for recklessly making a 

threat can be a true threat or instead violates the First Amendment. Although not asking 

the question in this way, in 2001 (two years before the decision in Black), a panel of the 

Court of Appeals rejected arguments that a previous version of the criminal threat statute 

violated the First Amendment because it was overbroad and vague. State v. Cope, 29 

Kan. App. 2d 481, 29 P.3d 974 (2001), rev'd on other grounds 273 Kan. 642, 44 P.3d 

1224 (2002). The statute as it read in 2001 allowed a conviction based on someone 

making a threat in reckless disregard of causing an evacuation of a building, place of

assembly, or facility of transportation. See 29 Kan. App. 2d at 483-84. 

The Cope panel reached its ruling, in part, by relying on State v. Bourke, 237 Neb. 

121, 122, 464 N.W.2d 805 (1991), disapproved on other grounds by State v. Warner, 290 

Neb. 954, 863 N.W.2d 196 (2015). In turn, the State now cites Bourke in support of its 

argument that Kansas' current statute is constitutional. But Bourke provides limited 

guidance. 

There, the Nebraska Supreme Court considered the constitutionality of a statute 

very similar to Kansas' 2001 version of the criminal threat statute. A criminal defendant 

argued at trial that the reckless disregard provision was both unconstitutionally vague and 

overbroad. The Nebraska trial court found the reckless disregard provision of the 

Nebraska statute unconstitutionally vague. On appeal from that ruling the question before 

the Nebraska Supreme Court was thus vagueness—not overbreadth. See 237 Neb. at 122. 

As a result, the Nebraska decision did not support that portion of Cope dealing with the 

overbreadth issue, only the panel's vagueness analysis. The Cope panel also cited several 

Kansas cases dealing generally with an issue about overbreadth. But the precedential 

value of these cases was limited because none of them dealt with the criminal threat

statute or discussed the true-threat doctrine. The State attempts to mitigate this by 

pointing out that post-Black the Nebraska Supreme Court reaffirmed Bourke. See State v. 
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Nelson, 274 Neb. 304, 311, 739 N.W.2d 199 (2007). Again, however, the Nebraska 

Supreme Court in Bourke considered an issue related to whether the statute was vague, 

not whether it was overbroad. And it did not discuss the true-threat doctrine. As a result, 

these authorities provide no guidance on whether a recklessly made statement of violence 

may constitutionally constitute a true threat. And neither does Cope. We thus find no 

Kansas authority deciding whether someone who utters a threat of violence in reckless 

disregard of causing fear has uttered a true threat. 

Nor has the United States Supreme Court explicitly decided the question. 

According to Justice Thomas, the lack of a decision by that Court on the issue "throws 

everyone from appellate judges to everyday Facebook users into a state of uncertainty."

Elonis v. United States, 575 U.S. __, 135 S. Ct. 2001, 2018, 192 L. Ed. 2d 1 (2015)

(Thomas, J., dissenting). Indeed, as we will detail, post-Black courts determining the type 

of intent necessary to qualify as a true threat have reached differing results. A more 

detailed discussion of the Virginia v. Black decision places those differing views in 

context.

1.4 Virginia v. Black

Barry Black and others were separately convicted of violating a Virginia statute 

that made it illegal to burn a cross "with the intent of intimidating any person or group of 

persons." Va. Code Ann. § 18.2-423 (1996). The statute added that "[a]ny such burning 

of a cross shall be prima facie evidence of an intent to intimidate a person or group of 

persons." Va. Code Ann. § 18.2-423. The Virginia Supreme Court held the statute was 

facially unconstitutional for two reasons: (1) It "selectively chooses only cross burning 

because of its distinctive message" and was "analytically indistinguishable from the 

ordinance found unconstitutional in R.A.V., [505 U.S. 377]", and (2) the prima facie 

evidence provision of the statute "enhanced [the] probability of prosecution" and was 
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thus overbroad because it "chills the expression of protected speech." Black v. 

Commonwealth of Virginia, 262 Va. 764, 774, 777, 553 S.E.2d 738 (2001), aff'd in part, 

vacated in part 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).

The case was appealed and reached the United States Supreme Court, where the 

nine justices wrote five opinions. A majority of the Court—formed through multiple 

opinions—disagreed with the Virginia Supreme Court's first holding that the statute was 

indistinguishable from the ordinance found unconstitutional in R.A.V. A plurality of the 

Court—consisting of Justice O'Connor, who authored the opinion, joined by Chief Justice 

Rehnquist, Justice Stevens, and Justice Breyer—reviewed "cross burning's long and 

pernicious history as a signal of impending violence." 538 U.S. at 363. Because of that 

history, Justice O'Connor wrote: "The First Amendment permits Virginia to outlaw cross 

burnings done with the intent to intimidate because burning a cross is a particularly

virulent form of intimidation." 538 U.S. at 363. She categorized the cross burning as a 

true threat, as had the Virginia Supreme Court. 

Justice O'Connor, however, disagreed with the Virginia Court's application of

R.A.V. to hold that the cross-burning statute was unconstitutional because it discriminated

on the basis of content and viewpoint. Black, 262 Va. at 771-76. She concluded the 

Virginia statute fell within an exception discussed in R.A.V. under which "the First 

Amendment permits content discrimination 'based on the very reasons why the particular 

class of speech at issue . . . is proscribable.'" Black, 538 U.S. at 362 (quoting R.A.V., 505 

U.S. at 393). That very reason, according to Justice O'Connor, was because the statute 

prohibited a true threat. And it did not single out "'disfavored topics'" or differentiate 

conduct based on the "victim's race, gender, or religion, or because of the victim's 

'political affiliation, union membership, or homosexuality.'" 538 U.S. at 362. 
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Justice Stevens concurred, writing that an intent to intimidate "qualifies as the kind 

of threat that is unprotected by the First Amendment." 538 U.S. at 368 (Stevens, J., 

concurring). And Justice Scalia agreed that "a State may, without infringing the First 

Amendment, prohibit cross burning carried out with the intent to intimidate." 528 U.S. at 

368 (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in 

part); see also 538 U.S. at 388 (Thomas, J., dissenting) ("Although I agree with the 

majority's conclusion that it is constitutionally permissible to 'ban . . . cross burning 

carried out with the intent to intimidate,' [citation omitted] I believe that the majority errs 

in imputing an expressive component to the activity in question[.]").

The remaining justices disagreed. In an opinion written by Justice Souter joined by 

Justices Kennedy and Ginsburg, they agreed with the Virginia Supreme Court that the 

statute was unconstitutional and could not be saved by any R.A.V. exception. 538 U.S. at 

380 (Souter, J., concurring in the judgment in part and dissenting in part). But the Court's 

differences of opinion did not end there. 

Justice O'Connor, having disagreed with the Virginia Supreme Court's first 

holding, turned to its second holding—that the statute was overbroad because of the 

prima facie evidence provision providing that "[a]ny such burning of a cross shall be 

prima facie evidence of an intent to intimidate a person or group of persons." Va. Code 

Ann. § 18.2-423. The plurality observed that cross burning can occur for reasons other 

than intimidation. "[S]ometimes the cross burning is a statement of ideology, a symbol of 

group solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan 

itself. Thus, '[b]urning a cross at a political rally would almost certainly be protected 

expression.'" Black, 538 U.S. at 365-66 (quoting R.A.V., 505 U.S. at 402 n.4 [White, J., 

concurring in judgment], and citing Brandenburg v. Ohio, 395 U.S. 444, 445, 89 S. Ct. 

1827, 23 L. Ed. 2d 430 [1969]). The plurality opinion concluded: "The prima facie 

evidence provision in this case ignores all of the contextual factors that are necessary to 
15

decide whether a particular cross burning is intended to intimidate. The First Amendment 

does not permit such a shortcut." 538 U.S. at 367. Although Justice Souter did not join 

this portion of the plurality opinion, he expressed similar concerns. See 538 U.S. at 384-

87. 

Justices Scalia and Thomas neither joined in this portion of the plurality opinion

nor expressed similar concerns. Instead, they disagreed with the plurality's conclusion the 

prima facie evidence provision made the statute unconstitutional. 538 U.S. at 368-79.

1.5 Black's guidance

Black did not directly address whether the First Amendment tolerates a conviction 

for making a threat even though there was no intent to cause fear. Even so, the decision 

explains the intent necessary to have a true threat prosecuted without violating the First 

Amendment's protections. The explanation begins with the passage defining a "true 

threat." Again, the Court said: 

"'True threats' encompass those statements where the speaker means to 

communicate a serious expression of an intent to commit an act of unlawful violence to a 

particular individual or group of individuals. See Watts v. United States, [394 U.S.] at 

708 ('political hyberbole' is not a true threat); R.A.V. v. City of St. Paul, 505 U.S., at 388. 

The speaker need not actually intend to carry out the threat. Rather, a prohibition on true 

threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear 

engenders,' in addition to protecting people 'from the possibility that the threatened 

violence will occur.'" 538 U.S. at 359-60.

A majority of the Court (the four members of the plurality, plus Justice Scalia) 

explicitly agreed on this statement. See 538 U.S. at 368 (Scalia, J., joining Parts I-III of 

Justice O'Connor's opinion). 
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Here, in rejecting Boettger's arguments, the panel seemingly focused on the 

second portion of the first sentence in which the Court referred to "an intent to commit an 

act of unlawful violence to a particular individual or group of individuals." It held the 

Black Court's use of the word "'intent' is a shorthand method for referring to the need for 

a mens rea higher than accidental or negligent conduct." Boettger, 2017 WL 2709790, at 

*4. The panel also concluded that the Black Court "did not rule on what level of mens rea

is necessary in a criminal threat statute," in part because the Virginia statute required 

subjective intent and the "constitutional necessity of that provision was never at issue."

Boettger, 2017 WL 2709790, at *4. 

Although the panel did not cite cases from other jurisdictions, several courts have 

reached similar conclusions. See United States v. Clemens, 738 F.3d 1, 10 (1st Cir. 2013)

(interpreting Black's reference to "those statements where the 'speaker means to 

communicate a serious expression of an intent to commit an act of unlawful violence'" as 

"only requir[ing] the speaker to 'intend to make the communication,' not the threat."

[quoting Black, 538 U.S. at 359; United States v. Elonis, 730 F.3d 321, 329 (3d Cir. 

2013)]), rev'd and remanded 575 U.S. ___, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015); 

United States v. Martinez, 736 F.3d 981, 986-87 (11th Cir. 2013) ("Black did not import a 

subjective-intent analysis into the true threats doctrine. Rather, Black was primarily a 

case about the overbreadth of a specific statute—not whether all threats are determined 

by a subjective or objective analysis in the abstract."), vacated and remanded 575 U.S. 

___, 135 S. Ct. 2798 (2015); United States v. Jeffries, 692 F.3d 473, 479-80 (6th Cir. 

2012) ("[Black] says nothing about imposing a subjective standard on other threatprohibiting statutes, and indeed had no occasion to do so: the Virginia law itself required 

subjective 'intent.' The problem in Black thus did not turn on subjective versus objective 

standards for construing threats. It turned on overbreadth—that the statute lacked any 

standard at all."); United States v. White, 670 F.3d 498, 508 (4th Cir. 2012) ("A careful 
17

reading of the requirements of § 875[c], together with the definition from Black, does not, 

in our opinion, lead to the conclusion that Black introduced a specific-intent-to-threaten 

requirement into § 875[c] and thus overruled our circuit's jurisprudence, as well as the 

jurisprudence of most other circuits, which find § 875[c] to be a general intent crime and 

therefore require application of an objective test in determining whether a true threat was 

transmitted."); United States v. Nicklas, 713 F.3d 435, 439-40 (8th Cir. 2013) (adopting 

Sixth Circuit's reasoning in Jeffries, 692 F.3d at 479-80); State v. Taupier, 330 Conn. 

149, 170-71, 193 A.3d 1 (2018), cert. denied 139 S. Ct. 1188 (2019) (Black does "not 

support the proposition a speaker constitutionally may be punished only when he has a 

specific intent to intimidate"; "[T]he plurality in Black was focused more on the Virginia 

cross burning statute's failure to differentiate between different levels of intent than on 

the specific mens rea that is constitutionally required before a person may be punished

for threatening speech.").

We disagree with these courts' reading of Black. Many of these decisions follow 

the reasoning of Elonis, 730 F.3d 321, which the United States Supreme Court reversed. 

Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015). Plus, there 

are several other reasons we do not dismiss the guidance provided by what we view as a 

plain reading of Black. 

Much of that guidance can be found in the sentence defining a true threat: "'True 

threats' encompass those statements where the speaker means to communicate a serious 

expression of an intent to commit an act of unlawful violence to a particular individual or 

group of individuals." Black, 538 U.S. at 359. The sentence has ambiguity. But the 

interpretation by the panel and other courts taking the same view ignores the first part of 

the sentence—that the speaker must "mean" to communicate a serious expression of an 

intent to commit violence. As a transitive verb, "mean" is defined as: "To have as a 

purpose or an intention; intend; To design, intend, or destine for a certain purpose or 
18

end." American Heritage Dictionary of the English Language 1088-89 (5th ed. 2011); see 

Webster's Third New Int'l Dictionary 1398 (1993) ("to have in the mind [especially] as a 

purpose or intention"; "to have an intended purpose"). 

Given this, we agree with the Tenth Circuit Court of Appeals' holding that this 

sentence "requir[es] more than a purpose to communicate just the threatening words. It is 

requiring that the speaker want the recipient to believe that the speaker intends to act 

violently." United States v. Heineman, 767 F.3d 970, 978 (10th Cir. 2014). The Tenth 

Circuit found more support for this position in a later sentence in the same paragraph in 

which Justice O'Connor applied the true-threat definition to intimidation: "'Intimidation 

in the constitutionally proscribable sense of the word is a type of true threat, where a 

speaker directs a threat to a person or group of persons with the intent of placing the 

victim in fear of bodily harm or death.'" 767 F.3d at 978 (quoting Black, 538 U.S. at 360, 

and adding emphases). Based on these passages, the Tenth Circuit "read Black as 

establishing that a defendant can be constitutionally convicted of making a true threat 

only if the defendant intended the recipient of the threat to feel threatened." 767 F.3d at 

978. 

Responding to those courts that read Black as only conveying that the speaker had 

to intend to utter the words, the Tenth Circuit observed that the Black Court had made 

clear the speaker uttering the threat need not actually intend to commit violence. 

Heineman, 767 F.3d at 978. The Tenth Circuit concluded these statements by the Court 

would be meaningless if a true threat was not defined to require the intent to threaten: 

"The proposition that the speaker need not intend to carry out the threat is a helpful 

qualification if there is a requirement that the defendant intend the victim to feel 

threatened. . . . But no such qualification is called for if the preceding sentence means that 

the only requisite mens rea is that the defendant 'knowingly says the words.' . . . Once it is 

established that the sole requisite intent is to say the (threatening) words, no reasonable 
19

person (juror) would then need to be informed that the defendant need not intend to carry 

out the threat. If there is no requirement that the defendant intend the victim to feel 

threatened, it would be bizarre to argue that the defendant must still intend to carry out 

the threat." 767 F.3d at 980-81. 

Likewise, the Ninth Circuit Court of Appeals determined that a "natural reading"

of Black's definition of true threats "embraces not only the requirement that the 

communication itself be intentional, but also the requirement that the speaker intend for 

his language to threaten the victim." United States v. Cassel, 408 F.3d 622, 631 (9th Cir. 

2005); see United States v. Bagdasarian, 652 F.3d 1113, 1116-18 (9th Cir. 2011). The 

Cassel court examined each of the separate opinions in Black and concluded that "eight 

Justices agreed that intent to intimidate is necessary and that the government must prove 

it in order to secure a conviction." 408 F.3d at 632 (citing Black, 538 U.S. at 359-60, 364-

65, 367 [O'Connor, J., plurality]; 538 U.S. at 368 [Scalia, J., concurring in part, 

concurring in the judgment in part, and dissenting in part]; 538 U.S. at 385, 387 [Souter, 

J., concurring in the judgment in part and dissenting in part]); see also Schauer, 

Intentions, Conventions, and the First Amendment, 55 Sup. Ct. Rev. 197, 217 (2003)

("[I]t is plain that . . . the Black majority . . . believed that the First Amendment imposed 

upon Virginia a requirement that the threatener have specifically intended to 

intimidate."); Gilbert, Mocking George: Political Satire as 'True Threat' in the Age of 

Global Terrorism, 58 U. Miami L. Rev. 843, 883-84 (2004) ("[C]ross burning is 

proscribable as a true threat where it is done with the intention of intimidating. Where, 

however, cross burning is not done to intimidate . . . its use is protected under the First 

Amendment, even where the effect of the cross burning is to intimidate."); cf. Rothman, 

Freedom of Speech and True Threats, 25 Harv. J.L. & Pub. Pol'y 283, 317-18 (2001) 

(arguing, before Black, for a subjective intent requirement, and observing that "First 

Amendment law often requires proof of a specific state of mind before finding a speaker 

liable or allowing a criminal conviction of the speaker").
20

Further, although the panel and other courts are correct in stating that Black was 

dealing with a statute that clearly required the cross burning to occur "with the intent of 

intimidating," the Black plurality, in the context of its overbreadth analysis, discussed

what had to be proven in order for there to be a true threat. This discussion became more 

general than the specific statute before the Court. Significantly, Justice O'Connor stated: 

"The prima facie evidence provision in this case ignores all of the contextual factors that 

are necessary to decide whether a particular cross burning is intended to intimidate. The 

First Amendment does not permit such a shortcut." 538 U.S. at 367. 

This language, in particular, suggests the members of the Court joining Justice 

O'Connor's opinion went beyond recognizing that intent was part of the statutory 

elements of the Virginia statute. They also recognized that intent to intimidate must exist 

in order to distinguish cross burning as a means of protected expression under the First 

Amendment from cross burning as a threat of impending violence unprotected by the 

First Amendment. See 538 U.S. at 368 (Stevens, J., concurring) (An intent to intimidate 

"qualifies as the kind of threat that is unprotected by the First Amendment."). 

In other words, the plurality's overbreadth analysis was "predicated on the 

understanding that the First Amendment requires the speaker to intend to place the 

recipient in fear." Heineman, 767 F.3d at 978. And, as the Cassel court concluded: 

"The Court's insistence on intent to threaten as the sine qua non of a 

constitutionally punishable threat is especially clear from its ultimate holding that the 

Virginia statute was unconstitutional precisely because the element of intent was 

effectively eliminated by the statute's provision rendering any burning of a cross on the 

property of another 'prima facie evidence of an intent to intimidate.'" 408 F.3d at 631. 
21

The Tenth Circuit also pointed out that Justice O'Connor wrote that the prima facie

evidence provision "'does not distinguish between a cross burning done with the purpose 

of creating anger or resentment and a cross burning done with the purpose of threatening 

or intimidating a victim.'" Black, 538 U.S. at 366. The Tenth Circuit then asked: "But 

how could that be a First Amendment problem if the First Amendment is indifferent to 

whether the speaker had an intent to threaten?" Heineman, 767 F.3d at 978-79. It then 

answered: "The First Amendment overbreadth doctrine does not say simply that laws 

restricting speech should not prohibit too much speech. It says that laws restricting 

speech should not prohibit too much speech that is protected by the First Amendment."

767 F.3d at 979. And Justice O'Connor's discussion makes clear "'the element of intent 

[is] the determinative factor separating protected expression from unprotected criminal 

behavior.'" Cassel, 408 F.3d at 632 (referring to statements in Black, 538 U.S. at 365, that 

"'same act' 'may mean that a person is engaging in constitutionally proscribable 

intimidation [or] only that the person is engaged in core political speech'" and "'a burning 

cross is not always intended to intimidate'"). 

Although Justice O'Connor's opinion only represented the position of four Justices, 

Justice Souter's opinion made similar points when discussing the prima facie evidence 

provision. He likewise noted that cross burning can be consistent with an intent to 

intimidate or with an "intent to make an ideological statement free of any aim to 

threaten." He referred to the intent to intimidate as "proscribable and punishable intent"

and the other as permissible intent. Black, 538 U.S. at 385-86 (Souter, J., concurring in 

the judgment in part and dissenting in part). Both Justice O'Connor's and Justice Souter's 

opinions highlight that, if the First Amendment did not impose a specific intent 

requirement, "Virginia's statutory presumption was superfluous to the requirements of the 

Constitution, and thus incapable of being unconstitutional in the way that the majority 

understood it." Schauer, 55 Sup. Ct. Rev. at 217.
22

We conclude a majority of the Black Court determined an intent to intimidate was 

constitutionally, not just statutorily, required. "Intimidation in the constitutionally 

proscribable sense of the word is a type of true threat, where a speaker directs a threat to 

a person or group of persons with the intent of placing the victim in fear of bodily harm or 

death." (Emphases added.) Black, 538 U.S. at 360.

Further, although Black addressed intimidation, its analysis applies equally to

K.S.A. 2018 Supp. 21-5415(a)(1). The statute draws no distinction based on the means 

through which fear is caused. The plain meaning of the conduct prohibited by K.S.A. 

2018 Supp. 21-5415(a)(1)—causing fear—is indistinguishable from the intimidation 

provision at issue in Black.

1.6 Recklessness

The Court of Appeals panel, however, rejected Boettger's argument that the Black 

Court's various references to "intent" eliminated the possibility of a true threat being 

made with a reckless disregard for causing fear of violence. The panel concluded Black

left open the possibility of the culpable mental state being recklessness. The panel then 

turned to a discussion of Kansas law that defines "recklessness" as a culpable mental state 

that means a person who acts recklessly is aware of the nature of his or her conduct. 2017 

WL 2709790, at *4-5 (quoting K.S.A. 2016 Supp. 21-5202[a], [b], [j] and citing Kansas 

cases). These Kansas authorities, according to the panel, aligned with the following 

statement from Justice Alito's concurring and dissenting opinion in Elonis, 135 S. Ct. 

2001: "Someone who acts recklessly with respect to conveying a threat necessarily 

grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware 

that others could regard his statements as a threat, but he delivers them anyway." 135 S. 

Ct. at 2015 (Alito, J., concurring in part and dissenting in part).
23

The panel held: "Recklessness is sufficient mens rea to separate wrongful conduct 

from otherwise innocent conduct. Accordingly, we find that K.S.A. 2016 Supp. 21-

5415(a)(1) does not criminalize constitutionally protected conduct by criminalizing 

threats to commit violence communicated in reckless disregard of the risk of causing fear 

in another." Boettger, 2017 WL 2709790, at *5.

We do not quarrel with the panel's conclusion that recklessness can differentiate 

criminal conduct from innocent conduct. But that does not answer whether the statute 

violates the First Amendment by punishing protected speech. And while Justice Alito 

argues recklessness satisfies the First Amendment, we have trouble squaring that 

conclusion with Black and Elonis. 

In Elonis, Anthony Douglas Elonis had used social media to post self-styled rap 

lyrics containing graphically violent language. In the posts he wrote disclaimers saying

the lyrics were "fictitious" and not intended to depict real persons. He also stated he was 

exercising his First Amendment rights. These posts led him to be charged with five 

counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to transmit in 

interstate commerce "any communication containing any threat . . . to injure the person of 

another." The statute did not set out a required mental state. At trial, Elonis requested a 

jury instruction that the Government had to prove that he intended to communicate a 

threat. The trial court rejected this argument and instead instructed the jury under the 

standard of whether "'a reasonable person would foresee that the statement would be 

interpreted by those to whom the maker communicates the statement as a serious 

expression of an intention to inflict bodily injury or take the life of an individual.'" 135 S. 

Ct. at 2007. The United States Supreme Court held this instruction was erroneous. 135 S. 

Ct. at 2012.
24

The Court applied a rule of statutory construction providing that the "'mere 

omission from a criminal enactment of any mention of criminal intent' should not be read 

'as dispensing with it.'" 135 S. Ct. at 2009 (quoting Morissette v. United States, 342 U.S. 

246, 250, 72 S. Ct. 240, 96 L. Ed. 288 [1952]). Instead, the Court would read into the 

statute "'only that mens rea which is necessary to separate wrongful conduct from 

"otherwise innocent conduct."'" 135 S. Ct. at 2010. And, in the context of the threat 

statute at issue, "'the crucial element separating legal innocence from wrongful conduct'

is the threatening nature of the communication. . . . The mental state requirement must 

therefore apply to the fact that the communication contains a threat." 135 S. Ct. at 2011. 

The majority found error because the jury instruction imposed a negligence standard. It 

noted the court had "'long been reluctant to infer that a negligence standard was intended 

in criminal statutes'" because its focus on what a reasonable person would perceive was 

"inconsistent with 'the conventional requirement for criminal conduct—awareness of 

some wrongdoing.'" 135 S. Ct. at 2011. 

The Elonis majority stopped short of answering the question before us about

whether a statute must require subjective intent to survive a First Amendment attack. It 

noted that during oral argument Elonis' attorney had contended that a reckless mental 

state would not be sufficient. But because the parties had not briefed the question, the 

majority refused to address it. And it specifically stated it was not addressing any First 

Amendment issues. 135 S. Ct. at 2012.

Justice Alito took the majority to task for not answering whether reckless conduct 

could make a true theat. He later expressed his view that recklessness should suffice and 

that applying a reckless mens rea does not violate the First Amendment. 135 S. Ct. at 

2013-16 (Alito, J., concurring in part and dissenting in part). His discussion focused on 

how the recklessness standard applied to Elonis, who had "made sure his wife saw his 

posts" and, in context, who could blame her for being fearful because "[t]hreats of 
25

violence and intimidation are among the most favored weapons of domestic abusers, and 

the rise of social media has only made those tactics more commonplace." 135 S. Ct. at 

2017 (Alito, J., concurring in part and dissenting in part). This context is readily 

distinguishable from the facts here, as well as those in Black and Watts.

Justice Alito then recognized and dismissed the possibility of a First Amendment 

issue: 

"It can be argued that § 875(c), if not limited to threats made with the intent to 

harm, will chill statements that do not qualify as true threats, e.g., statements that may be 

literally threatening but are plainly not meant to be taken seriously. We have sometimes 

cautioned that it is necessary to 'exten[d] a measure of strategic protection' to otherwise 

unprotected false statements of fact in order to ensure enough '"breathing space"' for 

protected speech. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 

41 L. Ed. 2d 789 (1974) (quoting NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 

9 L. Ed. 2d 405 (1963)). A similar argument might be made with respect to threats. But 

we have also held that the law provides adequate breathing space when it requires proof 

that false statements were made with reckless disregard of their falsity. See New York 

Times, 376 U.S., at 279-280 (civil liability); Garrison, 379 U.S., at 74-75 (criminal 

liability). Requiring proof of recklessness is similarly sufficient here." 135 S. Ct. at 2017 

(Alito, J., concurring in part and dissenting in part). 

At least two state courts have agreed with Justice Alito's view and others have 

recognized that recklessness may be a sufficient mens rea for a true threat. See State v. 

Taupier, 330 Conn. 149, 170-71, 193 A.3d 1 (2018), cert. denied 139 S. Ct. 1188 (2019) 

(collecting some post-Black cases and holding recklessness standard constitutional in a 

true-threat context); Major v. State, 301 Ga. 147, 150-51, 800 S.E.2d 348 (2017) 

(upholding recklessness standard post-Black); see also Commonwealth v. Knox, 190 A.3d 

1146, 1156 (Pa. 2018), cert. denied 139 S. Ct. 1547 (2019) (collecting some post-Black
26

cases and noting an open question existed about whether recklessness standard can be 

applied in a true-threat context). 

Our reading of Black differs, however, and is reflected in Justice Sotomayor's 

opinion in Perez v. Florida, 580 U.S. ___, 137 S. Ct. 853, 855, 197 L. Ed. 2d 480 (2017)

(Sotomayor, J., concurring in denial of petition for writ of certiorari):

"Together, Watts and Black make clear that to sustain a threat conviction without 

encroaching upon the First Amendment, States must prove more than the mere utterance 

of threatening words—some level of intent is required. And these two cases strongly 

suggest that it is not enough that a reasonable person might have understood the words as 

a threat—a jury must find that the speaker actually intended to convey a threat." 137 S. 

Ct. at 855.

As we have discussed, we, too, read Black as holding that the speaker must 

actually intend to convey a threat. Acting with an awareness that words may be seen as a 

threat leaves open the possibility that one is merely uttering protected political speech, 

even though aware some might hear a threat. Boettger offers examples. 

Boettger first argues the protester in Watts could have been convicted under the 

Kansas statute. The protester communicated he would shoot the president; he thus made a 

threat. See K.S.A. 2018 Supp. 21-5111(ff) (defining "threat"). And he was aware of the 

risk of causing fear but continued anyway. See K.S.A. 2018 Supp. 21-5202(j) (defining 

"reckless"). As another example, Boettger poses the situation of a Black Lives Matter 

protester repeating the lyrics of a well-known police protest song while standing near 

police officers. He quotes the lyrics as a threat to "'[t]ak[e] out a cop or two.' . . . N.W.A., 

Fuck tha Police, on Straight Outta Compton (Ruthless/Priority 1989)." Even if the 

protester did not intend to threaten the police, Boettger argues "[a] person in that situation 

runs a real risk of a conviction for reckless threat under Kansas' law, despite acting in 
27

protest by performing a controversial work of art." Finally, he suggests burning a "cross 

on private property within the view of a public roadway and other houses, where locals 

had stopped to watch" as part of a political rally would be an activity about which "the 

perpetrators would be conscious that it is seen as a threat, and would be acting in 

disregard of substantial and unjustifiable risk of causing fear." Such an act could be 

punishable under Kansas law, he argues, even if the protester intended politically 

protected speech on private property and did not intend to cause fear of violence. 

We find these examples persuasive illustrations of ways in which K.S.A. 2018 

Supp. 21-5415(a)(1) potentially criminalizes speech protected under the First 

Amendment. 

1.7 Summary

Black found specific intent was necessary to convict under the Virginia crossburning statute at issue in that case. See 538 U.S. at 360. The Court stated "[i]ntimidation 

in the constitutionally proscribable sense of the word is a type of true threat, where a 

speaker directs a threat to a person or group of persons with the intent of placing the 

victim in fear of bodily harm or death." Black, 538 U.S. at 360. It strains the plain 

meaning of the Court's language to conclude that "statements where the speaker means to 

communicate a serious expression of an intent to commit an act of unlawful violence to a 

particular individual or group of individuals" are not made "with the intent of placing the 

[particular individual or group of individuals] in fear of bodily harm or death." Black, 538 

U.S. at 359-60. A person who "means to communicate a serious expression of an intent

to commit an act of unlawful violence" is aware of the illegality of the violence he or she 

purportedly intends to commit and makes a serious expression of that intent, which he or 

she meant to communicate. (Emphasis added.) See Black, 538 U.S. at 360. This 

definition conveys that the conduct is intentional.
28

Under Black, the portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a 

conviction if a threat of violence is made in reckless disregard for causing fear causes the 

statute to be unconstitutionally overbroad because it can apply to statements made 

without the intent to cause fear of violence. See K.S.A. 2018 Supp. 21-5202(h) and (j)

(defining "intentionally" and "recklessly" in Kansas criminal statutes). The provision 

significantly targets protected activity. And its language provides no basis for 

distinguishing circumstances where the speech is constitutionally protected from those 

where the speech does not warrant protection under the First Amendment. 

Boettger's conviction for reckless criminal threat must be reversed because it was 

based solely on the unconstitutional provision. See Whitesell, 270 Kan. 259, Syl. ¶ 6 

(stating test for overbreadth). 

ISSUES 2 and 3: Our holding renders these issues moot. 

Boettger also argued K.S.A. 2018 Supp. 21-5415(a)(1) was unconstitutionally 

vague. And he alternatively contended his conviction should be overturned on another 

basis by arguing the jury instruction for reckless criminal threat was clearly erroneous. 

We need not reach these issues, however, because we have already granted Boettger the 

relief he seeks by reversing his conviction. 

CONCLUSION

We find the reckless criminal threat provision of K.S.A. 2018 Supp. 21-5415(a)(1) 

unconstitutionally overbroad. For that reason, we reverse Boettger's conviction, which is 

based solely on that provision, and vacate his sentence. 
29

Judgment of the Court of Appeals is reversed. Judgment of the district court is 

reversed. 

JOHNSON, J., not participating.