The Vermont Senate is one step closer to passing a bill that would bolster the state’s criminal threatening laws.
The Senate voted 28-2 Thursday on S.265’s second reading. The bill would increase criminal penalties for those who threaten violence in certain settings, such as schools, government buildings and places of worship. It also would limit a legal defense against criminal threatening charges.
Sen. Dick Sears, D-Bennington, told his colleagues on the floor that the genesis of the bill was a response to repeated threats to elections officials in Vermont following the 2020 general election as well as health officials during the coronavirus pandemic — threats that he called “profane,” “ugly” and “to (his) mind, threatening.”
One argument against S.265 is that it could infringe on First Amendment rights to free speech. While the bill was in committee, the ACLU of Vermont warned lawmakers that an earlier version of S.265 could be applied too broadly and chill “certain forms of political hyperbole.” The bill has since been amended, but the ACLU still does not support the bill, calling it unnecessary.
But Sears said threats of violence do not constitute protected speech.
“There are certain narrow and well-defined classes of expression that carry so little social value that the state can prohibit and punish such expression without violating the First Amendment,” he said. “A true threat is one of those cases.”
The bill also removes the state’s affirmative defense for those accused of criminal threatening, who say they could not or did not intend to carry out their threat. Sears said a defendant could still make that case to a court, but it would not be an affirmative defense as it is currently.
“The speaker need not actually intend to carry out the threat because the doctrine protects individuals from fear of violence, and the disruption that the fear engenders, in addition to protecting from the possibility that the threat of violence will occur,” Sears said.
Sen. Kesha Ram Hinsdale, D-Chittenden, told her colleagues she does not “always relish the thought of adding new criminal statutes to our criminal code and creating more opportunities to criminalize people.”
“At the same time, I do applaud the committee for this bill because so many women, and particularly women of color, I know have been driven out of elected office or kept from running in the first place because of harassment, fear of harassment and fear or threats that their lives might be in danger or the lives of their family members,” she said.
The bill needs final passage in the Senate — then House approval — before it could head to Gov. Phil Scott’s desk. Spokesperson Jason Maulucci said the governor’s office has not reviewed the bill yet.
Clarification: This story has been updated to more precisely describe the ACLU of Vermont’s position on the legislation.
