June 28, 2023
The Supreme Court issued ruling on a case yesterday that you may have missed.
But if you’ve ever dealt with online stalking, you’re going to want to pay attention. Because the justices just raised the bar for how far someone can take their first amendment right before it becomes a true threat.
In a seven to two decision in the Counterman vs Colorado case — the court wiped away the conviction of a guy who admitted in court he online stalked a local female musician he didn’t know by sending her hundreds and hundreds of Facebook messages, over multiple years. After she blocked him repeatedly, he kept finding ways to send more messages to her. The musician became fearful, withdrawn and anxiety ridden. She even stopped booking shows because she was afraid he would show up and hurt her or worse – I can’t quote his messages any further because this video will be taken down — but you get the picture. Police ultimately arrested the guy in May 2016 and a jury convicted him of stalking under Colorado law. A judge sentenced him to four and a half years in prison. He appealed saying the state’s stalking laws infringed on his free speech.
And yesterday the Supreme Court agreed with him. And not only that – they raised the bar for what is considered a true threat. In the ruling the Justices said to establish that the speech is a true threat and therefore not protected under the first amendment — prosecutors must prove that the defendant who made a threat acted recklessly — meaning, the person had knowledge that others could regard the statement or statements as threatening violence. But if that can’t be proven in court – the speech, the messages, the contact, no matter the volume – is considered protected under the first amendment.
The majority opinion was written by Justice Elena Kagan with Justices Barrett and Thomas dissenting. They said this new standard can easily be manipulated by the perpetrator. Justice Barrett writes those who make the contact could be a “delusional speaker” who may lack awareness of the threatening nature of their speech or a “devious speaker” who may strategically pretend they didn’t know their speech was threatening or a “lucky speaker” who may simply leave behind no evidence of their mental state.
Counterman v Colorado decision here.
