WASHINGTON (CN) — The Supreme Court limited the definition of true threats on Tuesday, siding with a Colorado man who stalked a local musician for years.
“The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements,” Justice Elena Kagan wrote for the 7-2 majority. “We hold that it does, but that a mental state of recklessness is sufficient.”
Billy Counterman was given a four-year prison sentence for stalking, but he appealed his conviction on the basis that the threats he sent lacked intent to harm.
For years Counterman had repeatedly messaged a local Colorado singer-songwriter identified in court filings only by her initials. C.W. never responded to Counterman, but Counterman's behavior only escalated. “Staying in cyber life is going to kill you,” he wrote in one message. In others, he said C.W. should “fuck off permanently” and “die.”
The missives terrified C.W., who began to withdraw from public appearances and cancel shows for fear for her life.
Colorado charged Counterman with stalking causing serious emotional distress — charges permitted by the First Amendment under an exception that disqualifies threatening speech known as true threats.
Counterman failed to overturn his conviction on appeal, then petitioned the Supreme Court, which heard oral arguments in April.
He claims the threats he sent to C.W. should be considered protected under the First Amendment because he did not mean them.
“A ‘true threat’ standard that considers the speaker’s intent is necessary to avoid criminalizing inevitable misunderstandings,” John Elwood with Arnold & Porter wrote in a brief for Counterman.
The defense also argued that the internet can distort one's intentions, as with the Facebook messages sent to C.W.
Colorado argued meanwhile that Counterman’s speech should be considered a true threat because it chilled C.W.’s rights.
“But true threats fall outside the First Amendment not because they are offensive or disagreeable,” Colorado Solicitor General Eric Olson wrote in the state’s brief. “Rather, they shut down the recipient’s own speech while inflicting the life-changing harms identified by this Court: ‘the fear of violence,’ ‘the disruption that fear engenders,’ and ‘the possibility that the threatened violence will occur.’”
To prove that Counterman’s messages were threatening, Colorado focused on what a reasonable person would think so. But Kagan said the state needed to prove Counterman disregarded a risk that his messages would be viewed as a threat.
“Counterman, as described above, was prosecuted in accordance with an objective standard,” the Obama appointee wrote. “The State had to show only that a reasonable person would understand his statements as threats. It did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment.”
Justice Sonia Sotomayor — joined by Justice Neil Gorsuch — wrote separately to stress the role of the internet in creating higher barriers for threatening speech.
“Without sufficient protection for unintentionally threatening speech, a high school student who is still learning norms around appropriate language could easily go to prison for sending another student violent music lyrics, or for unreflectingly using language he read in an online forum,” Sotomayor wrote.
In dissent, Justice Amy Coney Barrett — joined by Justice Clarence Thomas — said the ruling gives preferential treatment to threats.
“True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard,” the Trump appointee wrote.
Barrett said everyone agrees that Counterman communicated true threats outside the protection of the First Amendment but the court is giving him the chance to put forth a defense on those grounds anyway.
“The bottom line is this: Counterman communicated true threats, which, ‘everyone agrees, lie outside the bounds of the First Amendment’s protection,’” Barrett wrote. “He knew what the words meant. Those threats caused the victim to fear for her life, and they ‘upended her daily existence.’ Nonetheless, the Court concludes that Counterman can prevail on a First Amendment defense.”
Thomas wrote separately to criticize the court’s reliance on the landmark First Amendment ruling New York Times v. Sullivan. In Thomas’ view, New York Times was policy-driven and should be reconsidered.
“It is thus unfortunate that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court’s jurisprudence,” Thomas wrote.
Counterman said the court was right to recognize his right to prove his mental state.
“We're gratified that the Supreme Court agreed with Billy Counterman that the First Amendment requires proof of mental state before it can imprison a person for statements that are perceived as threatening,” Elwood said in a statement. “Free speech is too important to imprison people for Statements that are at most negligent.”
Colorado Attorney General Phil Weiser said the ruling would make it more difficult to prosecute stalking.
“In today’s ruling, the Court creates a loophole for delusional and devious stalkers and misapprehends the very nature of threats faced by stalking victims," Weiser said in a statement. "In short, this decision will make it more likely that victims of threats — mostly women — will live in fear and will be discouraged from speaking out against their stalkers, believing there is little they can do to hold those stalkers accountable."
Follow @KelseyReichmann
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
