1st Amendment: Supreme Court Raises Bar To Convict For Online Threats

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The Supreme Court on Tuesday sided with a man who made extensive online threats to a singer, ruling 7-2 that prosecutors must prove that a person making said threats is aware of the threatening nature of their communications.

Singer-songwriter Coles Whalen, who received threatening messages from Billy Raymond Counterman, poses for a portrait on March 4.The Washington Post via Getty Images

The Court ruled in favor of defendant Billy Raymond Counterman, who was convicted in Colorado of stalking after sending repeated messages to female musician Coles Whalen – including “die” and “Fuck off permanently,” which she says made her fear for her safety. Counterman’s conviction was based on an objective test over whether a reasonable person must believe his comments constituted “true threats,” which aren’t protected by the 1st Amendment. His attorney argued in front of the USSC that the test should instead focus on the speaker’s intent, because Counterman didn’t intend to threaten Whalen.

In the ruling authored by Justice Elena Kagan, the court found that while true threats of violence aren’t protected under the 1st Amendment, states must prove that a criminal defendant has “disregarded a substantial risk that his communications would be viewed as threatening violence.”

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. -Forbes

According to Kangen, 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,” adding “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.”

Dissenting were Justices Clarence Thomas and Amy Coney Barrett.

The case concerned a Colorado law used to convict Billy Raymond Counterman of stalking and causing “emotional distress” for Coles Whalen, a singer-songwriter he had never met. Counterman, who had previously been convicted of making threats to others, served four years in prison in the Whalen case.

The court’s interest involved the question of when statements, especially those made online, can be considered “true threats” not protected by the First Amendment.

Counterman contended the state must show that the speaker intends the messages to be threatening. Colorado, backed by the Justice Department and a majority of states, says it should be enough that a “reasonable” recipient feel the threat of physical harm could be imminent, based on the context of the circumstances. -Washington Post

The case is now back in the hands of lower courts, where prosecutors will weigh retrying the case under these new standards established by the Supreme Court’s decision.

Whalen, who testified at Counterman’s trial, said she was terrified at his relentless pursuit – and never knew if he would be in the crowd at her performances. She says it affected her mental health, and caused her to cancel concerts, affecting her career.

After she blocked Counterman on Facebook, she says he made new profiles and continued to harass her for years – all covered (now) under the 1st Amendment.

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