The Supreme Court ruled Tuesday to impose a less-stringent test for when speech constitutes a “true threat” that violates the First Amendment, siding with a man convicted of stalking and issuing a decision that critics suggest could make it harder to prosecute alleged stalkers and abusers—but that other civil rights groups cheered as necessary for freedom of speech.
Singer-songwriter Coles Whalen, who received threatening messages from Billy Raymond Counterman, ... [+]
The Supreme Court ruled 7-2 in favor of Billy Raymond Counterman, a man who was convicted in Colorado of stalking after sending repeated messages to female musician Coles Whelan that made her fear for her safety, including ones that suggested he knew her whereabouts and told her to “die” and “F–k off permanently.”
Counterman was convicted based on an objective test that considered whether a reasonable person would believe his comments constituted “true threats”—which, unlike most speech, aren’t protected by the First Amendment—but his attorney argued that the Supreme Court should instead impose a subjective test that takes the speaker’s intent into account, because Counterman didn’t intend to threaten Whelan.
Colorado defended Counterman’s conviction and said the objective test for determining what makes a “true threat” should stay, noting during oral arguments that changing the standard would “enable more harm” and lead to situations like “allow[ing] devious stalkers to escape accountability by insisting that they meant nothing by their harmful statements.”
The court ruled that for speech to be considered a “true threat,” there has to be some demonstration that the speaker “had some subjective understanding of his statements’ threatening nature,” but it only has to be shown that the speaker was reckless with their comments, rather than intending them to be harmful.
Counterman sent “thousands” of unwanted messages to Whelan between 2014 and 2016, according to court documents, which included asking, “Was that you in the white Jeep?”, telling her that “staying in cyber life is going to kill you” and telling Whelan that he was “unsupervised,” adding, “I know, it freaks me out too, but the possibilities are endless.” The messages—which Whelan did not respond to, and efforts to block Counterman were thwarted by him creating new accounts—led to Whelan having crippling anxiety, canceling shows out of fear and “isolation, sleepless nights, and a newly acquired concealed-carry permit,” according to her brief to the court. Counterman was arrested in May 2016 and sentenced to four-and-a-half years in prison, and an appeals court upheld his conviction. The Supreme Court took up the case after considering a similar one with Elonis v. United States in 2015, which concerned a man who posted rap lyrics on Facebook with threats against his wife, coworkers and others, but claimed he did not do so with intent to threaten. The court overturned that conviction, but issued a narrow ruling that did not fully answer the question of when statements rise to become “true threats.”
Colorado man’s First Amendment challenge will test the scope of protection for threatening speech (SCOTUSblog)
The Supreme Court ponders when a threat is really a 'true threat' (NPR)
When Is a Threat a Threat?: A Forthcoming SCOTUS Ruling Could Have a Sweeping Impact on Gender-Based Violence (Ms. Magazine)
The Supreme Court is about to hear a landmark online threats case (The Verge)