Supreme Court: Colorado stalker’s conviction overturned in ‘true threats’ case.

The Supreme Court Vacates Stalking Conviction, Sets New Guidelines on Online Harassment

The Supreme Court made a significant ruling on Tuesday, vacating a stalking conviction in a 7-2 decision that establishes new guidelines for online harassment and its protection under the First Amendment. This ruling has far-reaching implications for cases involving online threats that may not be considered a “true threat.”

Justice Elena Kagan’s Majority Opinion

Justice Elena Kagan authored the majority opinion in Counterman v. Colorado, ruling in favor of Billy Counterman. Counterman had been convicted of stalking after repeatedly sending Facebook messages to musician Coles Whalen, causing her to fear for her safety.

The Supreme Court’s ruling overturns a lower court’s decision that Counterman’s messages were not protected under the First Amendment’s freedom of speech. The majority opinion states that prosecutors must demonstrate that the defendant had a subjective understanding of the threatening nature of their statements.

“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” Kagan wrote. “The State need not prove any more demanding form of subjective intent to threaten another.”

Joining the majority were conservative Justices Samuel Alito, Brett Kavanaugh, and Chief Justice John Roberts, along with liberal Justice Ketanji Brown Jackson.

Strong Dissent from Conservative Justices

However, conservative Justices Clarence Thomas and Amy Coney Barrett dissented in separate writings, expressing their disagreement with the majority’s decision. Barrett argued that the majority was giving true threats “preferential treatment.”

“The Court holds that speakers must recklessly disregard the threatening nature of their speech to lose constitutional protection. Because this unjustifiably grants true threats preferential treatment, I respectfully dissent,” Barrett wrote.

The Supreme Court has sent the case back for further proceedings, as Counterman was prosecuted under an “objective” standard. While he will have another chance, he will not receive the truly subjective standard he had hoped for.

The Details of Counterman’s Messages

Counterman sent over 1,000 online messages to Whalen, some of which indicated that he knew her whereabouts and included explicit threats. He told her to “die” and “f*** off permanently.” These messages formed the basis of his stalking conviction and subsequent legal challenges.

Counterman’s defense argued for a subjective test that takes into account the speaker’s intent, citing mental illness and delusions as factors that should be considered. However, his First Amendment defense was denied by the trial court, and his appeals were rejected by both the Colorado Court of Appeals and the Colorado Supreme Court.

This Supreme Court ruling has significant implications for the interpretation of online harassment and the protection of freedom of speech under the First Amendment.

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