On Tuesday, the U.S. Supreme Court decided in favor of a man who regularly threatened a musician online, pointing out that in order to secure a conviction, prosecutors must show the threat-maker is aware of the nature of their communications.
Billy Raymond Counterman, the defendant, who had been found guilty of stalking in Colorado, won the case 7-2. The reason for Counterman’s conviction was the repeated texts he wrote to Coles Whalen, a female musician, with ominous words like “die” and “F*ck off permanently,” which made her fear for her safety.
An objective assessment was used to evaluate whether Counterman’s remarks might reasonably be interpreted as “true threats,” which are not First Amendment-protected speech. Counterman’s attorney claimed during the hearings before the supreme court that the test should put more emphasis on the speaker’s purpose, noting that Counterman did not intend to threaten Whalen.
Although genuine threats of violence are not protected by the First Amendment, the ruling’s author, Justice Elena Kagan, came to the conclusion that states must show that a criminal defendant “disregarded a substantial risk that his communications would be viewed as threatening violence.”
According to Forbes:
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.
The court’s “recklessness standard “offers ‘enough ‘breathing space’ for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats,” Kagan wrote in the court’s opinion, though she acknowledged the compromise ruling means “something is lost on both sides: The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats. But in declining one of those two alternative paths, something more important is gained: Not ‘having it all’—because that is impossible—but having much of what is important on both sides of the scale.”
The two dissenters were Justices Amy Coney Barrett and Clarence Thomas.
In a dissent supported by Thomas, Barrett stated that she would have maintained the objective test for “true threats” and added that this is now the bar for all other forms of expression not covered by the First Amendment. The court’s decision, according to her, “unjustifiably grants true threats preferential treatment” and “gives short shrift to how an objective test works in practice.”
The court’s ruling led to the reversal of Counterman’s conviction and the remand of the case to a lower court for further review. Therefore, if Counterman is found guilty in accordance with the newly established criteria by the Supreme Court decision, there is still a chance that she will be found guilty of stalking.
Before the decision, a number of advocacy organizations for crime and domestic violence victims voiced worry that a judgement in Counterman’s favor could make it extremely difficult for abuse and stalking victims to get protection orders and flee their abusers. A subjective approach would “jeopardize” victim protections and “unnecessarily compromise” orders of civil protection, they claimed in amicus filings.
“The court saying that it must only be shown that a speaker acted recklessly may help to mitigate those impacts, however,” Forbes noted. “Victims’ advocacy groups said in their brief that if the court was going to side with Counterman, imposing a recklessness standard would be the best way to do it, saying that would apply in Counterman’s case because he messaged her with ‘reckless disregard of the fact’ that Whalen hadn’t responded to his messages and blocked him repeatedly.”
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