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PaperclipPerfector  10mo ago (text post)   34921 thread views

Culture War Roundup for the week of June 26, 2023

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New free speech rules just dropped: COUNTERMAN v. COLORADO.

"True threats" are not protected speech under the first amendment. This is not in dispute. Of course, this begs the questions, "what is a true threat?" and "what elements does the government have to prove in order to use the true threat exception?" The State of Colorado (and The United States) argues that the state only need prove that the speech would have been understood by a reasonable person as threatening. The defense argues that the state must prove that the defendant himself knew that the speech would cause fear or be considered threatening.

"Held: The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness."

The facts of the case:

From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. never responded. In fact, she repeatedly blocked Counterman. But each time, he created a new Facebook account and resumed his contacts. Some of his messages were utterly prosaic—(“Good morning sweetheart”; “I am going to the store would you like anything?”)—except that they were coming from a total stranger. Others suggested that Counterman might be surveilling C. W. He asked “[w]as that you in the white Jeep?”; referenced “[a] fine display with your partner”; and noted “a couple [of] physical sightings.” And most critically, a number expressed anger at C. W. and envisaged harm befalling her: “Fuck off permanently.” “Staying in cyber life is going to kill you.” “You’re not being good for human relations. Die.”

The messages put C. W. in fear and upended her daily existence. She believed that Counterman was “threat[ening her] life”; “was very fearful that he was following” her; and was “afraid [she] would get hurt.” As a result, she had “a lot of trouble sleeping” and suffered from severe anxiety. She stopped walking alone, declined social engagements, and canceled some of her performances, though doing so caused her financial strain. Eventually, C. W. decided that she had to contact the authorities.

Colorado charged Counterman under a statute making it unlawful to “[r]epeatedly . . . make[] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” The only evidence the State proposed to introduce at trial were his Facebook messages.

This case is a little strange. It appears to be a stalking case, yet it was litigated on appeal on pure first amendment grounds. The reason for this is that the state didn't introduce any evidence of actual stalking. Thus the whole case hinged on Counterman's digital communications with C. W. The decision was 7-2, with Barrett and Thomas dissenting. It's interesting to see how some of the older generation still sees the expansive interpretation of the first amendment as a modern, left-wing innovation, and I suppose in some way it is. The ACLU for all it's faults is still willing to file a brief defending an alleged stalker on the basis of free speech.

It appears to be a stalking case, yet it was litigated on appeal on pure first amendment grounds. The reason for this is that the state didn't introduce any evidence of actual stalking.

It was litigated on pure first amendment grounds because:

  1. That is the only issue on which the Court granted cert. For all we know, 5000 other issues were litigated at trial.

  2. More importantly, the statute under which he was convicted criminalizes speech: "Colorado charged Counterman under a statute making it unlawful to “[r]epeatedly . . . make[] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Colo. Rev. Stat. §18–3–602(1)(c) (2022)." And the evidence against him were Facebook posts.

Edit: Cut part meant for a different poster.

Does anyone have any strong opinions on which of the three positions (three because Sotomayor and Gorsuch concurred only in part and in judgment) were correct?

There are people who have been convicted for Facebook rants about their ex-wives where there was no evidence that they believed that those ex-wives would see them (and in which, for example, the ex-wives saw them through a friend of a friend). Under the objective test urged by the dissenters, that would be ok, if the words would cause a reasonable recipient to feel fear. I prefer the majority's approach to that of the dissenters.

The concurrence would require the intent to cause fear in non-stalking cases, such as those I just mentioned. Which is probably a good idea, though I am not sure how it would work in practice.

Edit: Also, Sotomayor makes a convincing case that "careful examination of this Court’s true-threats precedent and the history of threat crimes does not support a long-settled tradition of punishing inadvertently threatening speech."

Thanks for helping me square a round hole. I just realized that I have considered free speech to be about public square speech. And that I have always felt that personal one on one private speech is outside of the scope of the first amendment - aka that when it was drafted for one or other reason founding fathers didn't care about what people write in a mail to each other.

that when it was drafted for one or other reason founding fathers didn't care about what people write in a mail to each other.

They cared about the federal government, and whether the federal government has the authority to peer into what you write in the mail, and to punish you for it.

That is sort of what I’m stuck on this case. Perhaps because I wanted a way to be anti-protestors I’ve thought the first amendment must include a right to not listen. Everyone yelling like say at a stock exchange isn’t effective speech meant to convince people to change their minds. My right to speech seems fairly worthless if I don’t get to choose who I converse with. People just yelling to the point I can’t have a conversation with someone of my choosing because I can’t hear feels like it impedes my right to speech.

If say its 2020 and daily protest. My butcher is downtown. A crowd is outside with megaphones. I can’t hear anything inside but I want to talk to my butcher about the right piece of meat for a dish. The protest have now interfered with my ability to have free speech with my butcher. Otherwise free speech just becomes might is right and the loudest person gets free speech.

When reading this case I see a similar situation where at some point she has a right to not listen and has chosen not to. Does free speech imply the opposite that you have a right not speak to someone if you choose to? Part of me doesn’t like this playing out as a “true threat” question. Shouldn’t she have a right not to talk to someone since she blocked him multiple times.

Of course even if you accept a right to privacy etc or have to deal with what is a “true threat” you never get to a point that is anything more than those with political power in the situation get to choose when someone is just doing constitutionally protected free speech versus they were too naughty and violated another persons safety/privacy.

I’d feel a little more solid that he went into harrassment zone if she filed a legal notice to be left alone. Girls block and unblock all the time.

I think the key issue that will get litigated in the retrial is the fact that she never sent him a message asking him to stop. She never told him that she felt threatened or even uncomfortable. She did block him multiple times, but Facebook (as far as I know) doesn’t send you a notification saying, “Person X has blocked you. Please do not contact them again.” He has to figure out that:

  1. The fact that he can no longer see her profile when logged in under his account means that she intentionally blocked him.

  2. The fact that she intentionally blocked him means that she not only doesn’t want to see his messages, but that they are causing her severe emotional distress.

Now sure, normal people with normal social skills could figure this out. Maybe people that oblivious should be institutionalized for the good of society, but it seems wrong for this to be the tool the state uses to kick these people out of society.

Now sure, normal people with normal social skills could figure this out.

I'm no lawyer, but is this the point of the "objective person" standard which is common across many issues in law? A very wide range of behaviors could effectively become legalized if you can just say "I didn't know/couldn't tell that what I was doing was bad" and the prosecution would somehow have to prove you knew it was bad? (While trying to find an answer to this question, I found https://en.wikipedia.org/wiki/Reasonable_person#Mentally_ill, which says "The reasonable person standard makes no allowance for the mentally ill."

(For what it's worth, I agree that it seems fairly weak to convict someone of a crime when the most explicit message they were given is being unable to see the profile and when they did nothing beyond send facebook messages.)

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