Supreme Court establishes fresh criteria for ‘True Threats’.

The Supreme Court Protects Freedom of Expression in Landmark Ruling

The Supreme Court made a groundbreaking decision in the case of Counterman v. Colorado, vacating the conviction of a Colorado man accused of online stalking. In a 7-2 ruling, the court established a new standard for distinguishing between “true” and “reckless” threats, aiming to safeguard freedom of expression while effectively addressing genuine threats.

The majority opinion was authored by Justice Elena Kagan and supported by both liberal and conservative justices, including Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and John Roberts. Justices Clarence Thomas and Amy Coney-Barret dissented. Billy Raymond Counterman, the petitioner in this case, had been convicted of stalking a musician in 2021 by a Colorado trial court, and his appeal was rejected by a Colorado appeals court the same year.

Kagan emphasized in the majority opinion that the state must demonstrate that the defendant consciously disregarded the substantial risk that their communications would be perceived as threatening violence. However, she clarified that “true threats of violence” fall outside the protection of the First Amendment and can be punishable as crimes.

Counterman had sent the Colorado musician numerous messages from multiple Facebook accounts, which his lawyers argued were a result of mental illness and a misguided sense of humor. These messages ranged from memes to explicit threats. The musician, referred to as C.W. in court, was deeply distressed and took legal action against Counterman after his repeated attempts to evade being blocked on Facebook.

The central issue before the Supreme Court was whether Counterman’s statements constituted “true threats” or if his circumstances and lack of intent protected him under the First Amendment. The justices faced the challenge of striking a balance between protecting freedom of speech and safeguarding individuals from genuine threats and their consequences.

Kagan acknowledged the delicate balance the court had to maintain, stating, “As with any balance, 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.”

The court’s decision was largely influenced by the fact that there was no evidence of physical interaction between Counterman and the alleged stalking victim. Their only interaction occurred through Facebook messages. Therefore, this ruling specifically addresses the intent of the speaker when making threats protected by the First Amendment and does not impact other stalking-related laws.

The ruling received widespread approval from civil liberties and First Amendment advocacy groups, who celebrated the affirmation that inadvertently threatening speech cannot be criminalized. Brian Hauss, an attorney with the American Civil Liberties Union’s Speech, Privacy, & Technology Project, expressed satisfaction with the decision, stating, “The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

The Foundation for Individual Rights and Expression also praised the ruling on Twitter, noting that it sets a higher bar for punishing speech as a “true threat” and will limit prosecutors’ ability to criminalize speech.

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