The Supreme Court has ruled in favor of a Colorado man, Billy Counterman, who was convicted of a crime after sending threatening messages to a woman on Facebook. The court has raised the standard for establishing when a statement is considered a “true threat” and not protected by the First Amendment. The decision was divided, with Justices Clarence Thomas and Amy Coney Barrett in dissent.
According to Justice Elena Kagan, who wrote for the majority, prosecutors must now demonstrate that a defendant who made a threat acted recklessly, with the knowledge that others could interpret their statement as threatening violence. This higher standard of proof is necessary to establish that the speech is a true threat and therefore no longer protected by the First Amendment.
Previously, Counterman was convicted under a standard requiring the state to show only that a reasonable person would understand the messages as threats. The majority found that this violated the First Amendment. Kagan stated that the state did not have to show any awareness on Counterman’s part that the statements could be understood as threats, which is a violation of free speech rights.
In a dissenting opinion written by Barrett and joined by Thomas, they argued that the majority’s decision gave “true threats” preferential treatment. They pointed out that a delusional or devious speaker may lack awareness of the threatening nature of their speech, making it difficult to establish the necessary intent. They disagreed with the majority’s conclusion that Counterman’s communications constituted true threats and that he could prevail on a First Amendment defense.
The case stemmed from hundreds of Facebook messages Counterman sent to the woman, Coles Whalen, between 2014 and 2016. Whalen believed the messages were threatening her life and took precautions out of fear. She eventually sought a protective order and reported Counterman to law enforcement, leading to his arrest and subsequent conviction. Counterman argued that his messages were not true threats but protected speech under the First Amendment.
The ACLU supported Counterman’s case, asserting that inadvertently threatening speech should not be criminalized. They argued that people would be hesitant to speak if they could be jailed for failing to predict how their words would be received. The ACLU praised the Supreme Court’s decision, stating that it upholds the First Amendment’s protection of free speech by requiring the government to demonstrate intent or recklessness in cases involving threatening speech.
In conclusion, the Supreme Court’s ruling in Counterman v. Colorado sets a higher standard for prosecuting threats under the First Amendment. The decision emphasizes the importance of demonstrating intent or recklessness on the part of the defendant in determining whether speech constitutes a true threat.
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