Michigan Supreme Court vacates Court of Appeals’ decision declaring Michigan’s terroristic threats statute facially invalid, and remands for consideration of whether complete invalidation of statute can be avoided by reading mens rea

In last month’s issue of the Criminal Defense Newsletter, we discussed the Court of Appeals’ monumental decision in People v Kvasnicka, __ Mich App __ (2025) (Docket No. 371542), which held that MCL 750.543m(1)(a) is facially unconstitutional. MCL 750.543m(1)(a) makes it a felony to “[t]hreaten to commit an act of terrorism and communicate the threat to any other person.” In Kvasnicka, the Court of Appeals held that the statute is unconstitutional pursuant to the U.S. Supreme Court’s 2023 decision in Counterman v Colorado, 600 US 66, 71 (2023), which held that statutes like MCL 750.543m that criminalize ‘true threats’ are unconstitutional unless they require proof that the defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”¹ 

The Court of Appeals’ decision in Kvasnicka not only meant that the charges against Mr. Kvasnicka would be dismissed, but that Michigan’s terroristic threats statute could no longer be enforced against anyone, and that those previously convicted of violating the statute would most likely be entitled to relief from judgment. But shortly after the Court of Appeals’ decision issued, the Wayne County Prosecutor sought leave to appeal to the Michigan Supreme Court and moved for immediate consideration of its application. As last month’s issue of the CDN was being finalized, the Supreme Court granted the prosecution’s motion for emergency consideration, vacated the Court of Appeals’ opinion in Kvasnicka, and remanded the case back to the Court of Appeals.² 

The Supreme Court’s peremptory order “express[ed] no opinion on whether MCL 750.543m violates constitutional free-speech protections by imposing criminal liability without proof ‘that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.’ ”³ On remand, the order directs the Court of Appeals to address “the proper interpretation of MCL 750.543m in light of: (1) MCL 750.543z … and (2) the constitutional-doubt canon.” This indicates that the Supreme Court’s considered the Court of Appeals’ analysis in Kvasnicka incomplete because it did not discuss whether the statute’s constitutional defect could be cured by reinterpreting its meaning.

MCL 750.543z was enacted alongside MCL 750.543m in 2002 and provides that prosecuting agencies “shall not prosecute any person or seize any property for conduct presumptively protected by the first amendment to the constitution of the United States in a manner that violates any constitutional provision.” In 2007, when the Court of Appeals originally held that MCL 750.543m(1)(a) is constitutional because it only prohibits true threats, it stated that this conclusion was “bolstered by the existence of MCL 750.543z.”⁴ When it revisited the issue in 2021, the Court explained that the Legislature’s inclusion of MCL 750.543z supported this interpretation of the statute because it “prohibits prosecution for presumptively constitutional speech.”⁵ It is unlikely, however, that the same analysis will cause the Court of Appeals to reverse itself on remand in Kvasnicka. When MCL 750.543m and MCL 750.543z were enacted, threats that do not qualify as true threats were already recognized as constitutionally protected.⁶ Therefore, MCL 750.543z’s prohibition against prosecutions of individuals for engaging in protected speech could support the conclusion that the Legislature only intended to criminalize the making of “true threats” when it enacted MCL 750.543m and made it a crime to “communicate the threat [to commit an act of terrorism] to any other person.” Conversely, when MCL 750.543z was enacted, states were not prohibited from imposing criminal liability for making true threats without proving “that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”⁷ The Michigan Court of Appeals did not believe that the First Amendment required proof of the defendant’s specific intent or reckless disregard for how a true threat would be received by the listener when it initially interpreted the statute in 2007,⁸ and there is no reason to believe that the Michigan Legislature’s understanding of the First Amendment presaged the U.S. Supreme Court’s decision in Counterman two decades before it issued.

In addition to reconsidering the validity of MCL 750.543m in light of MCL 750.543z, the Supreme Court’s remand order also directs the Court of Appeals to utilize the constitutional-doubt canon of statutory interpretation. This canon requires that “courts reasonably presume that the Legislature did not intend to enact a statute that ‘raises serious constitutional doubts,’ ” and that they “first ascertain whether a construction of the statute is fairly possible by which the question may be avoided,” before holding that the statute is unconstitutional and wholly invalid.⁹ For this canon to cure the constitutional defect in MCL 750.543m, the Court of Appeals would be required to find that it is fairly possible to interpret the statute as limiting criminal liability to defendants who violate the explicit text of the statute while consciously disregarding a substantial risk that their communications would be interpreted by others as threatening violence.¹⁰ 

Somewhat similarly, the Supreme Court’s remand order also directed the Court of Appeals to address “whether it is appropriate to adopt a limiting construction of MCL 750.543m to remedy any remaining constitutional deficiency,” and “if so, what that limiting construction should be.” The order cites People v Burkman, 513 Mich 300, 307 (2024), which considered whether MCL 168.932(a) violates the First and Fourteenth Amendments. The statute prohibits attempting to influence an elector through “other corrupt means or device.” The Court acknowledged that this ‘catchall provision’ was overly broad, but to avoid declaring the entire statute unconstitutional, it held “that when the charged conduct is solely speech and does not fall under any exceptions to constitutional free-speech protections,” “other corrupt means or device” means “false speech that is related to voting requirements or procedures and is made in an attempt to deter or influence an elector’s vote.”

Presumably, on remand, the Court of Appeals could add a mens rea element to MCL 750.543m, even if the element cannot be reasonably inferred from text of the statute.

Endnotes

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