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PaperclipPerfector  10mo ago (text post)   34968 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.

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."

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