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U.S. Supreme Court Sets New Standard for Prosecuting Online Threatening Language

In cases of threatening behavior, do prosecutors have to demonstrate that the alleged perpetrator knew his or her behavior would be perceived as threatening and recklessly did it anyway—or just that a reasonable person would see it as threatening?

The U.S. Supreme Court provided some clarity in a 5-4 ruling Tuesday on freedom of speech protections. Prosecutors now have to pursue the more challenging option—that the defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” wrote Associate Justice Elena Kagan in the majority opinion for the court.

The case, Counterman v. Colorado, No. 22-138, centered around Billy Counterman, who sent hundreds of Facebook messages to a local singer and musician from 2014 to 2016. Some of the messages appeared threatening or implied that Counterman was surveilling the musician, identified in court documents as C.W. Although C.W. tried to block Counterman repeatedly, he created new Facebook accounts to continue contacting the singer.

“Several of his messages envisaged violent harm befalling her,” the decision explained. “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. C.W. eventually contacted the authorities.”

The U.S. state of Colorado charged Counterman under a statute that makes it unlawful to repeatedly communicate with another person in a manner that would cause a reasonable individual to suffer serious emotional distress. Counterman argued that his messages were not “true threats,” but the trial court rejected the argument, finding that a reasonable person would consider the messages threatening. Counterman was sentenced to four and a half years in prison.

In appeals, Counterman’s attorneys argued that he suffers from mental illness and did not intend his messages to be threatening. Those appeals eventually reached the U.S. Supreme Court.

The Court reversed the lower rulings and remanded the case back to lower courts for another look, agreeing that “true threats of violence” are not protected speech under the First Amendment. The Court held, however, that courts must apply a subjective test to determine if a statement is in fact a true threat of violence, according to analysis from law firm Faegre Drinker. Prosecutors must demonstrate that the defendant demonstrated a reckless state of mind when making the statements in question—for example, a defendant who consciously disregards a substantial risk that statements would be understood as a true threat.

“Using a recklessness standard also fits with this Court’s defamation decisions, which adopted a recklessness rule more than a half-century ago,” according to the majority opinion. “The Court sees no reason to offer greater insulation to threats than to defamation. While this Court’s incitement decisions demand more, the reason for that demand—the need to protect from legal sanction the political advocacy a hair’s-breadth away from incitement—is not present here. For true threats, recklessness strikes the right balance, offering ‘enough "breathing space" for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats.”

The Biden Administration had been arguing for the lower standard—that a reasonable person could construe the behavior as threatening—especially in light of an increase of online threats against elected officials and public figures.

Colorado Attorney General Phil Weiser—whose office prosecuted Counterman in the case—said in a statement that the Court’s decision will make it “more difficult to stop stalkers from tormenting their victims.”

“Stalkers cause major harm by their words alone, whether they mean to cause that harm or not,” Weiser continued in his statement. “But the Court has chosen to prioritize threats over those terrorized by the threats. According to the Court, protecting the ‘speech’ of threatening stalkers matters more than guarding against the life-changing harms caused to those made to fear for their lives. 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 today’s ruling, the Court creates a loophole for delusional and devious stalkers and misapprehends the very nature of threats faced by stalking victims,” he added.

The American Civil Liberties Union (ACLU), on the other hand, praised the ruling. In an amicus brief filed in the case, the ACLU and its partners argued that a great deal of speech—including political speech, satire, and artistic speech—contains overt or implicit references to violence that could be interpreted as threatening. Without requiring an additional element of intentional wrongdoing, people could be convicted of serious felonies because they failed to anticipate how their words would be perceived.

In her opinion, Kagan cautioned that adopting a lower standard could having a chilling effect on free speech, driven by “a speaker’s fear of mistaking whether a statement is a threat, fear of the legal system getting that judgment wrong, and fear of incurring legal costs…”

“Insistence on a subjective element in unprotected-speech cases, no doubt, has a cost: Even as it lessens chill of protected speech, it makes prosecution of otherwise proscribable, and often dangerous, communications harder,” she continued. “But a subjective standard is still required for true threats, lest prosecutions chill too much protected, non-threatening expression.”