Tuesday, the U.S. Supreme Court ruled in favor of a man who routinely threatened a musician online, noting that in order to secure a conviction, prosecutors must demonstrate that the threat-maker is cognizant of the nature of their communications.
The defendant, Billy Raymond Counterman, who was found guilty of harassment in Colorado, won the case 7-2. The conviction of Counterman was based on the repeated texts he sent to Coles Whalen, a female musician, containing threatening phrases such as “die” and “F*ck off permanently,” which caused her to fear for her safety.
It was determined objectively whether Counterman’s statements could be reasonably interpreted as “true threats,” which are not protected by the First Amendment. During the Supreme Court hearings, Counterman’s counsel argued that the test should place greater emphasis on the speaker’s intent, noting that Counterman did not intend to threaten Whalen.
Although genuine threats of violence are not protected by the First Amendment, the author of the ruling, Justice Elena Kagan, concluded that states must demonstrate that a criminal defendant “disregarded a substantial risk that his communications would be viewed as threatening violence.”
As reported by 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.”
Both Justices Amy Coney Barrett and Clarence Thomas dissented.
Barrett stated, in a dissent supported by Thomas, that she would have maintained the objective criteria for “true threats” and added that this is now the standard for all other expressions not protected by the First Amendment. According to her, the court’s decision “unjustifiably grants true threats preferential treatment” and “gives short shrift to how an objective test works in practice.”
The court’s decision led to Counterman’s conviction being overturned and the case being remanded to a subordinate court for further review. Therefore, if Counterman is found culpable based on the newly established criteria established by the Supreme Court’s decision, there is still a possibility that she will be convicted of stalking.
A number of advocacy organizations for crime and domestic violence victims expressed concern prior to the decision that a ruling in favor of Counterman could make it exceedingly difficult for abuse and stalking victims to obtain protection orders and abandon their abusers. In amicus briefs, they argued that a subjective approach would “unnecessarily compromise” civil protection orders and “jeopardize” victim protections.
“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.”