Supreme Court weighs free speech protections for online threats
Christopher Hutton
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Supreme Court justices appeared in oral arguments Wednesday to favor a narrow understanding of what constitutes stalking or harassment in the instance of abusive messages sent over social media.
The court heard arguments Wednesday in Counterman v. Colorado, a case concerning threatening messages sent online and whether they could be read as genuine threats. If the text messages are declared not to be actual threats, then they would be protected by the First Amendment. The justices were seeking to determine what criteria were necessary to declare the texts as an actual threat.
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It’s “inevitable that speaker intent is going to be important,” Justice Samuel Alito said during the arguments.
Counterman deals with a series of Facebook messages sent by Billy Raymond Counterman to the local Colorado musician Coles Whalen in 2014, including asking her to “die” and “f[***] off permanently.” Whalen said the messages made her feel threatened, damaged her mental health, and led to her canceling several shows. Counterman was later sentenced in 2017 to four and a half years of prison on stalking charges. Colorado laws do not require the state to prove that Counterman intended for Whalen to fear for her safety. Instead, the standard is whether the actions would make a reasonable person fearful.
Counterman’s lawyer, John Elwood, argued that the speaker must have the intent to harm to have his statements defined as a genuine threat and that negligence alone is not enough to declare statements a threat.
Colorado’s representative, Solicitor General Eric Olson, argued that actual threats have always been prosecuted without a specific intent and that requiring intent would allow stalkers to escape accountability, create additional harm, and devalue speech.
Justice Sonia Sotomayor said there were conflicting issues in such a case — what a speaker intended and what the audience heard. The jury would have to be the one to sort out such a matter, Sotomayor said.
Justice Clarence Thomas also noted that the definition of “reasonable person” could shift due to people being more sensitive in the past, which may mean that they are more likely to interpret words as a threat. “We are more hypersensitive about different things now and people can feel threatened in different ways,” he said. He brought up the example of a black college student feeling threatened by a discussion of lynching.
Counterman echoes the 2015 case Elonis v. United States, which concerned a man who posted revenge fantasies about killing his ex-wife on Facebook. The court threw out the conviction based on relatively narrow grounds but did not answer the constitutional questions presented by Elonis.
A group of 25 states filed a brief supporting Colorado, asking the court not to impose a need to prove intent, as it could limit their ability to curb threatening conduct.
A collective of free speech groups argued in Counterman’s favor, claiming that intent was necessary to avoid penalizing people for what they say online.
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“A vast amount of speech on political, social, and other issues occurs online and is often abbreviated, idiosyncratic, decontextualized, and ambiguous,” the American Civil Liberties Union wrote in a brief it co-signed on Counterman. “The foreseeable audience is broad, diverse, and likely to interpret the speech in myriad ways the speaker never intended” on social media. If the Court decides that intent doesn’t matter, then “people who wish to broadcast messages on matters of public concern might find themselves staring down criminal prosecutions for unintended reactions to their speech that a jury later deems ‘reasonable.'”
A ruling in the case is expected in the coming months before the court’s term ends in late June.