The Supreme Court reaffirmed on Tuesday that the First Amendment does not protect truly threatening speech but said states must prove that the speaker had at least some understanding that the words crossed a line.
In a 7-2 ruling, the court vacated the conviction of a Colorado man who sent a musician repeated messages that she considered intrusive and threatening. The man argued that his words were not threatening.
A state court found the man guilty under an “objective” standard: A reasonable person would have known that the behavior was out of bounds.
The Supreme Court ruled that the objective standard violated the man’s First Amendment rights and that speech restriction requires a higher standard.
“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” Justice Elena Kagan wrote in the key opinion.
The Supreme Court has decided the case as Americans become increasingly sensitive to offensive terms and society debates microaggressions. Governments are increasingly trying to write boundaries into laws and speech codes.
The justices identified a tradition of criminalizing speech that is truly threatening, such as sending a letter vowing to assassinate the president.
Speech that is not intentionally meant to threaten but is unwelcome by the recipient is tougher to place on the First Amendment scale.
“The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements,” Justice Kagan wrote. “We hold that it does, but that a mental state of recklessness is sufficient.”
Justice Amy Coney Barrett dissented from the ruling. She said the court adopted an objective standard in other areas of free speech and wondered why the majority was dispensing with that standard in cases of true threats.
She said the First Amendment rule that the court fashioned Tuesday could make it tougher to get a restraining order against someone who threatens to bomb an airport or could protect a student who talks about carrying a gun to school to “shoot everyone he hates.”
“A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her. The Court’s decision thus sweeps much further than it lets on,” she wrote in a dissent joined by Justice Clarence Thomas.
Justice Sonia Sotomayor agreed with Justice Kagan’s conclusion but disagreed with her recklessness standard, which she said criminalized too much speech that should be protected.
She said policing speech will now “depend on ever-shifting community norms around language.”
“Especially in a climate of intense polarization, it is dangerous to allow criminal prosecutions for heated words based solely on an amorphous recklessness standard,” she wrote.
She said states must show an intent to threaten to prosecute such speech.
The case involved Billy Raymond Counterman of Colorado, who sent repeated unsolicited messages on social media to Coles Whalen, a musician identified only by initials in court documents but who has publicly discussed the case on her website.
Ms. Whalen said she received 1,000 messages and called them “life threatening and life altering.” She said she had to curtail her music career because she was terrified that she was being followed and would be hurt.
Among the messages were “Was that you in the white Jeep?” and “You’re not being good for human relations. Die. Don’t need you” and “Staying in cyber life is going to kill you. Come out for coffee. You have my number.”
Counterman argued that First Amendment speech protected his messages and denied he was threatening. He was convicted of stalking under Colorado law. Judges said an objective observer would have considered his words dangerous, even if he didn’t mean what he said.
During oral argument, Chief Justice John G. Roberts Jr. questioned how some of the statements could be construed as threats.
He pointed out that any number of people might chide someone with an online presence.
Colorado, which prosecuted the case, said the case covered the total context of the statements. The state said Counterman persisted even after Ms. Whalen tried to block him from her social media.
The case is Counterman v. Colorado.
The court’s ruling vacates Counterman’s conviction and sends the case back to Colorado for another review of the evidence in light of the justices’ standard.
Colorado Attorney General Phil Weiser said the high court’s view of the First Amendment was “unfortunate” and will make it difficult to stop stalkers.
“Stalkers cause major harm by their words alone, whether they mean to cause that harm or not. But the court has chosen to prioritize threats over those terrorized by the threats. According to the court, protecting the speech of threatening stalkers matters more than guarding against the life-changing harms caused to those made to fear for their lives. This ruling fails to take seriously the compelling research that documents how stalking cases — particularly in the domestic violence context — often escalate into physical violence,” he said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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