Washington – Supreme Court on Tuesday I stood with a guy from Colorado who was convicted of a crime after sending several threatening messages to a woman on Facebook, with judges raising the criteria for determining when a statement is a “genuine threat” not protected by the First Amendment.
The Supreme Court split the case 7-2 Counterman vs. Colorado, with Justices Clarence Thomas and Amy Coney Barrett dissenting. The court overturned the Colorado Court of Appeals ruling that upheld Bailey Konterman’s conviction and sent the case back for further proceedings consistent with its opinion.
Writing for the majority, Justice Elena Kagan said plaintiffs must prove that a defendant who made a threat acted recklessly — that is, knowing that others might perceive their statements as a threat of violence — to prove that the speech was a “real threat” and is therefore no longer covered by the First Amendment. .
“The question is whether the First Amendment still requires evidence that the defendant had some objective understanding of the threatening nature of his statements,” she wrote. “We believe it is so, but a mental state of recklessness suffices. The state must show that the defendant consciously disregarded a substantial risk that his communications would be perceived as threatening violence.”
Counterman has been prosecuted under a standard that requires the state to show that only a “reasonable person” would understand the messages as threats. The majority found that it violated the First Amendment.
“[The state] He didn’t have to show any awareness on his part that the remarks could be understood in this way. “For the reasons stated, it is a violation of the First Amendment,” Kagan wrote.
In a dissenting opinion written by Barrett, which Thomas joined, the judge said the majority decision “unjustifiably accords preferential treatment to the real threat.”
Barrett wrote: “A dummy speaker may lack awareness of the threatening nature of her speech; a dummy speaker may strategically disavow this awareness; and a fortunate speaker may leave no evidence of state of mind for the government to use against her.”
She concluded that Counterman “conveyed real threats” and caused the recipient of the letters, a singer-songwriter named Coles Wallen, to fear for her life.
“Nonetheless, the Court concluded that Counterman could win on the First Amendment defense,” Barrett said. “Nothing in the Constitution dictates that outcome.”
The issue stemmed from hundreds of Facebook messages that Counterman sent Whalen between 2014 and 2016. Some of the messages were harmless, while others were more disturbing. Whalen tried to block Counterman, but he created multiple accounts to keep sending it.
In one, Counterman wrote, “F**k off permanently,” while in the other, he wrote, “I’ve wiretapped phone lines before. What are you afraid of?” According to court filings, a third letter read: “You are not good for human relations. Die. You are not needed.”
Whalen believed Counterman’s messages were life threatening and worried that she might be harmed. She had trouble sleeping, suffered from anxiety, stopped walking on her own, and even turned down offers out of fear that Counterman was following her.
She eventually turned to authorities and obtained a protective order, after which Colorado law enforcement arrested Counterman and charged him with stalking under a Colorado law that prohibits “repeating any form of contact with another person” in a manner that would “cause the person to suffer distress.” serious psychological disorders and cause him … to suffer from serious mental disorders.”
Conviction under the law requires evidence that the speaker “knowingly” made repeated contact, and does not require the person to realize that the actions would cause “a reasonable person to suffer serious mental distress”.
Before his trial, Counterman sought to have the charge dismissed, arguing that his messages were not “real threats,” and thus speech is protected under the First Amendment. But the state court found that his letters amounted to a real threat, and that the First Amendment did not prevent his prosecution. A jury then found Counterman guilty, and he was sentenced to four and a half years in prison.
Counterman appealed, arguing that the lower court erred when it applied an objective standard to determine whether his messages posed real threats. He said the court should instead adopt the “subjective intent” requirement, which requires the state to show that it is aware of the threatening nature of his communications.
But a Colorado appeals court upheld his conviction and agreed with the court’s ruling that Counterman’s Facebook messages were “genuine threats” and not protected by the First Amendment. The state Supreme Court declined to review the case.
The American Civil Liberties Union, which filed a brief in support of Counterman, welcomed the decision, saying in a statement that the Supreme Court had held that “unintentional threatening speech cannot be criminalized.”
“In a world full of misunderstandings and miscommunications, people would feel completely chilled out of speaking if they could be imprisoned for failing to predict how their words would be received,” said Brian Hoss, senior staff attorney for the organization’s speech, privacy and technology division. project. “The First Amendment provides an essential outlet for public debate by requiring the government to prove that the defendant acted willfully or recklessly.”
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