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Supreme Court Rules on First Amendment Claim in Cyberstalking Case

'The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,' wrote Justice Elena Kagan

The nation’s highest court issued a ruling defining when threatening speech is not protected by the First Amendment.

The United States Supreme Court ruled 7-2 that an individual can be prosecuted for making a “true threat” so long as the state can prove the person subjectively understood the threatening nature of the statements. In issuing the ruling, the Court rejected Colorado’s standard for criminal threats and that a lower court had violated the rights of a man accused of stalking.

Counterman v. Colorado, the case at the center of the debate, involves Billy Counterman who reportedly sent hundreds of messages to a local musician over Facebook between 2014 and 2016. The musician, identified in the Court’s opinion as C.W., had never met Counterman and never answered any of the messages. She repeatedly blocked Counterman, who in turn would make a new profile through which to contact her. 

“Several of his messages envisaged violent harm befalling her. Counterman’s messages put C. W. in fear and upended her daily existence: C. W. stopped walking alone, declined social engagements, and canceled some of her performances,” noted Justice Elena Kagan, who authored the majority opinion

After being charged by Colorado, Counterman sued the state. He argued his actions were protected by the First Amendment because he had not made “true threats.” However, a trial court found his messages would reasonably be taken as a threat. Counterman then appealed, counterclaiming that the state was obligated to prove the statements were objectively threatening and that he understood the threatening nature of the statements. 

Under Colorado law, an objective standard can be used to prove a statement is understood to be a threat of violence.

Kagan wrote:

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. We hold that it does, but that a mental state of recklessness is sufficient. The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.

Justices Amy Coney Barrett and Clarence Thomas both submitted dissenting opinions. Barrett wrote that in the majority ruling, “The Court adopts a subjective standard, though not quite the one advanced by Counterman,” and that she believes “unjustifiably grants true threats preferential treatment.”

“The Court holds that speakers must recklessly disregard the threatening nature of their speech to lose constitutional protection,” the justice wrote. “I will give the Court this much: Speakers must specifically intend to incite violence before they lose First Amendment protection… our First Amendment precedent does not set a ‘baseline ban on an objective standard’ …Precedent does more than allow an objective test for true threats; on balance, it affirmatively supports one.”

As a result of the ruling, the Court affirmed Couterman’s First Amendment claim and the case was vacated.

“Nothing in the Constitution compels that result,” wrote Barrett.

The majority’s ruling goes against a recommendation from the Justice Department.

Colorado Attorney General Phil Weiser, who argued the case before the Court, said the ruling “creates a loophole for delusional and devious stalkers and misapprehends the very nature of threats faced by stalking victims.”

“Stalkers cause major harm by their words alone, whether they mean to cause that harm or not. But the Court has chosen to prioritize threats over those terrorized by the threats,” Weiser said in a press release on June 27. “This ruling fails to take seriously the compelling research that documents how stalking cases—particularly in the domestic violence context—often escalate into physical violence.”

“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,” said the AG.

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