A Colorado free speech case that went before the U.S. Supreme Court on Wednesday could shift the boundaries of what is considered protected by the First Amendment and what qualifies as an illegal threat across the country.
Billy Counterman, a man convicted in 2017 of stalking a Colorado musician, is challenging his conviction on the grounds his unsolicited and unwelcome social media messages were protected free speech.
At stake is the legal definition of a “true threat” — a threat of violence that is not protected by the First Amendment. Currently, the definition varies by state. Some states require judges and jurors to consider the speaker’s state of mind and intent when a threat was made. But other states, including Colorado, consider only the impact of the threat on a “reasonable person,” not the threat-maker’s intent.
“The only issue before us is, are we going to approve of a pure negligence standard that doesn’t take into account any of the intentions of the speaker when we prosecute for speech? That is really the bottom line here,” Associate Justice Sonia Sotomayor said.
Counterman sent as many as 1,000 messages to the musician on Facebook during a two-year span that started in 2014. She ignored his messages and repeatedly blocked him, but he continued to send messages that implied he was watching the woman, was romantically interested in her and was frustrated by her lack of response.
“You’re not being good for human relations,” Counterman wrote in one message. “Die. Don’t need you.”
“Was that you in the white Jeep?” he wrote in another message.
“Five years on Facebook. Only a couple physical sightings,” he said in another note.
Colorado courts found that Counterman’s messages were true threats. He was convicted of stalking and sentenced to 4½ years in prison. But he appealed, arguing that his messages were protected by the First Amendment and that Colorado’s laws should consider a person’s state of mind and intent when evaluating the legality of speech.
The U.S. Supreme Court agreed to take up the question after the Colorado Supreme Court declined. During oral argument Wednesday, an attorney for Counterman, John Elwood, argued that considering a speaker’s intent is critical in the prosecution of threats and that refusing to do so would chill broader free speech.
“Criminalizing misunderstanding is especially dangerous in an age when so much communication occurs on social media, which brings together strangers in an environment that removes much of the context that gives words meaning,” Elwood said. “It chills expression and imposes prison time on speakers who do not tailor their views to their audience… The chilling effect comes from being told, ‘It doesn’t matter what you think, you have to think about the reaction of your audience.’”
Colorado Attorney General Phil Weiser argued that the speaker’s intent should not be considered when determining whether a statement was a true threat, because doing so would make it easier for people who are delusional or dishonest to escape criminal prosecution.
“Regardless of what the perpetrator was thinking, requiring specific intent in cases of threatening stalkers would immunize stalkers who are untethered from reality,” Weiser said. “It would also allow devious stalkers to escape accountability by insisting they meant nothing by their harmful statements.”
Several justices pushed back on that argument and suggested that a person’s intent is relevant to a criminal prosecution.
“You emphasize that context is really important here,” Associate Justice Neil Gorsuch said to Weiser. “Content and context will do the work. Why isn’t the defendant’s intention part of that context? How could it not be part of that context?”
The argument before the justices lasted about two hours. Christopher Jackson, an appellate partner at Denver’s Holland and Hart law firm who listened to the arguments, said the justices appeared to signal strong support for Counterman, and predicted a “lopsided victory” for the man.
“I think the ultimate outcome is they will reverse the conviction,” Jackson said, adding that if the court rules that way, Colorado likely will need to change its laws to align with the ruling.
“The liberal justices… all sounded pretty firmly on the petitioner’s side, but I think all the justices expressed a lot of sympathy for the petitioner’s viewpoint,” Jackson said. “(They all) asked questions that made it sound like they were going to side with the petitioner. Justice (Samuel) Alito is the justice who most frequently sides with the government in criminal matters, and he was very skeptical — which tells you where things are.”
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