Abstract
The Supreme Court’s recent decision on “true threats” and the First Amendment has an important blind spot: it unknowingly reflects an outdated account of how the brain produces emotions, and how we perceive emotions in others. The Court’s opinion treats a person’s reaction to a “true threat”—that is, the experience of fear in response to a threat of physical harm—as a reflex unaffected by the idiosyncrasies of the human brain. Neuroscience research shows that this view is wrong. Instead of passively awaiting a stimulus (like a threat) and then reacting, our brains constantly predict our external environment and the internal state of our bodies. These predictions produce the experience of an emotion like fear. While a predictive brain confers a powerful evolutionary advantage, its predictions can be wrong, sometimes in systemically biased ways that disadvantage people based on race or sex. Because of its blind spot, the Court missed the systematic biases posed by its true-threats doctrine. To address this failing, this Article turns to a source ignored by the Court and the parties: the Equal Protection Clause of the Fourteenth Amendment. Taking an equal-protection approach, the Court should abandon its one-size-fits-all true-threats doctrine in favor of a flexible analysis that takes account of different contexts.