The Supreme Court waded Wednesday into considerations about a defendant’s mental state in the appeal of a Colorado man who was convicted of stalking a woman over his messages on social media, which she perceived as threatening.
Justices from both wings of the court questioned why a defendant shouldn’t be able to provide his or her reason for making a statement deemed a true threat — not protected by the First Amendment — when facing a state criminal proceeding.
“Isn’t it inevitable that speaker intent is going to be important?” Justice Samuel A. Alito Jr. asked.
Justice Sonia Sotomayor questioned what a jury should be able to consider before sending someone to prison.
“It would seem to me whenever you’re trying someone for a First Amendment violation involving speech for any conduct, criminal or civil, that the speaker’s intent should be part of the presentation the jury gets,” she said.
The case was brought by Billy Raymond Counterman, who seeks to overturn his criminal conviction after a Colorado jury found him guilty of threatening a musician via messages on Facebook.
Counterman friended the musician — identified as CW in court papers — in 2014 on social media and proceeded to send her messages over a two-year period that included: “I’m currently unsupervised. I know, it freaks me out too, but the possibilities are endless,” and “You’re not being good for human relations. Die. Don’t need you.”
CW did not respond to any of the messages, and in 2016, she told her family that the messages freaked her out. She contacted law enforcement, which issued a protective order.
Counterman was unaware of the protective order but did not send messages after it was issued. He only learned of the protective order upon his arrest.
Counterman was charged with stalking under Colorado law, which bans “knowingly, repeatedly, making any form of communication with another person, in a manner that would cause a reasonable person to suffer serious emotional distress,” according to his court filing.
He argued that his messages were protected by the First Amendment and that there was no determination about his mental state during the trial.
The jury ultimately decided his messages rose to a level of “true threat” in the digital age and convicted him. He was sentenced to 4½ years in prison.
The question before the Supreme Court is what type of mental state is required to find a person criminally liable for making a threat online.
Specifically, the justices will decide whether a “true threat” — unprotected by the First Amendment — is determined by the person’s intent or if a statement should be judged by how a reasonable person would interpret it.
Circuit courts have split on the issue. Some have judged a threat by determining whether a reasonable person would consider it to be one, while others have required proof that the speaker actually intended to threaten another person.
Some of the justices appeared skeptical about whether Counterman’s texts really rose to a threat — or if society has become too sensitive.
“One of the things he was convicted of, it was an image of liquor bottles, and there was a caption, ‘A guy’s version of edible arrangements.’ Say that in a threatening way,” Chief Justice John G. Roberts Jr. said to the lawyer representing the state of Colorado, as the courtroom erupted in laughter.
Justice Neil M. Gorsuch said he was concerned with implementing a “reasonable person” standard when society has changing views.
“We live in a world in which people are sensitive and — and maybe increasingly sensitive. What do we do in … a world in which reasonable people may deem things harmful, hurtful, threatening? And we’re going to hold people liable willy-nilly for that?” he asked.
Colorado Attorney General Phillip Weiser said Counterman became increasingly aggressive with his messages — and that was the issue, his conduct.
“The threat here is when you put them all together,” Mr. Weiser said. “She got literally up to a thousand messages over a couple of years. She was subject to this torrent of activity that was objectively terrifying to her and would be to any reasonable person in that position.”
But John Elwood, the lawyer for Counterman, said a jury should hear from the person who made the statements and what his or her words meant.
“There are a lot of statements that are ambiguities,” Mr. Elwood said.
Wednesday’s case is Counterman v. Colorado. A ruling is expected by the end of June.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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