WASHINGTON (CN) — The First Amendment protects broad swaths of speech in the United States but an exception to those rights is before the Supreme Court on Wednesday as the justices try to discern if the intention behind threatening speech can dull its blade.
At the center of the case is a Colorado musician who faced online harassment from the same man for years. The singer-songwriter — who is identified as C.W. in court filings — claims Facebook messages from Billy Counterman ended her dream of making music and touring.
The behavior landed Counterman with a prison sentence of over four years, which a lawyer will soon ask the Supreme Court to overturn on the basis that Counterman didn’t really mean the threats in the hundreds of messages sent to C.W.
“Counterman’s conviction is constitutionally invalid,” John Elwood, an attorney with Arnold & Porter,wrotein his brief. “Viewed as part of a conversation, Counterman’s statements were ‘very every-day life’ and, at most, heated but nonthreatening.”
C.W. never responded to any of Counterman’s messages. In fact, she even blocked him on multiple occasions. But the defense claims that Counterman's mental illness convinced him C.W. was communicating with him through alternate platforms.
Counterman’s messages increasingly frightened C.W., and she began to suspect he was following her. For example, he wrote, “Was that you in the white Jeep?” and “Five years on Facebook. Only a couple of physical sightings.” Counterman also said he had tapped phone lines before and said, “Staying in cyber life is going to kill you. Come out for coffee. You have my number.”
In other messages, Counterman told her to “fuck off permanently” and “die.” She then withdrew from public appearances, canceling shows and declining engagements out of fear for her life.
A court upheld charges against Counterman for stalking causing serious emotional distress. Though he called messages protected speech, a judge found that Counterman’s messages qualified under the true threats exception.
Fighting Counterman'sappeal, Colorado has argued the man's speech were properly restricted under the true threats exception, not because his words were offensive, but because they chilled C.W.’s rights.
“But true threats fall outside the First Amendment not because they are offensive or disagreeable,” Colorado Solicitor General Eric Olsonwrotein the state’s brief to the U.S. Supreme Court. “Rather, they shut down the recipient’s own speech while inflicting the life-changing harms identified by this Court: ‘the fear of violence,’ ‘the disruption that fear engenders,’ and ‘the possibility that the threatened violence will occur.’”
The state says it shouldn’t matter what Counterman’s intentions were when the result created an injury.
“Threats have long fallen outside the First Amendment because they injure those threatened no matter what the person making the threat had in mind,” Olson wrote.
Counterman argues the opposite, that his intention is central to deciding the case.
“A ‘true threat’ standard that considers the speaker’s intent is necessary to avoid criminalizing inevitable misunderstandings,” Elwood wrote.
The forum for Counterman’s speech is notable, his attorneys argue, because what people say on the internet can differ from their intentions. Counterman also claims his speech would be chilled under the state’s test for assessing true threats.
“Imposing criminal liability under a pure negligence standard — essentially criminalizing misunderstandings — chills broad swaths of protected speech, including political speech, minority religious beliefs, and artistic expression,” Elwood wrote. “Colorado’s negligence standard is especially dangerous during the Internet age, because social media brings together strangers in an increasingly polarized society while simultaneously removing nonverbal cues that provide critical context about meaning.”
A number of First Amendment groups have gathered behind Counterman, worrying that criminalizing speech without considering intent could endanger civil rights. The Reporters Committee for Freedom of the Press said the court’s precedents have upheld strict mens rea requirements that have protected journalists working in good faith to inform the public.
“The domain of ‘true threats’ should be no exception: The press must be able to pursue its work without concern that reporting intended to promote public deliberation will be misconstrued — or pretextually mischaracterized — as an effort to threaten or harass,” the groupwrotein an amicus brief before the court.
Publishing political cartoons with an offensive opinion or writing about personal traumatic experiences could put reporters at risk for liability without these protections, the group argues. Even routine practices like contacting someone for comments on a story could pose a risk.
“Those examples of overreach make clear that reporting and commentary on matters of clear public concern would be at risk under an overbroad conception of the First Amendment’s exception for true threats,” the groups wrote. “And the concern is made more acute by the recent rise of ‘antidoxxing’ legislation that could easily — in the absence of a strict scienter requirement — be misused to punish the publication of lawfully acquired truthful information about public officials.”
Opponents of the appeal include advocacy groups representing crime victims and survivors of gender-based violence. Thewarnedthe court that a judgment for Counterman will jeopardize future stalking prosecutions and civil protective orders. The groups say 30% of stalking cases lead to physical violence.
“Threats of physical harm may be subtle, and present in ways that may not be immediately understood as threats by others but which the abuser or stalker knows the victim will perceive as a threat based on a continuum of past behavior,” the brief from the groups states.
They urged the Supreme Court not to make the cases they see every day harder to prove.
“As amici know firsthand from their extensive work with survivors of such abuses, technology-facilitated stalking and abuse are already under addressed,” the groups wrote. “Making these crimes harder to prove by imposing a specific intent requirement as a constitutional floor will create another hurdle to prosecution.”