OPINION ANALYSIS

Justices throw out Colorado man’s stalking conviction in First Amendment dispute

The Supreme Court on Tuesday threw out the conviction of Billy Raymond Counterman, a Colorado man who was sentenced to four-and-a-half years in prison for stalking based on his Facebook messages. By a vote of 7-2, the justices ruled that the state courts had applied the wrong test to determine whether Counterman’s statements were “true threats,” which are not protected by the First Amendment. Instead of focusing on whether a reasonable person would regard the man’s statements as a threat of violence, the Supreme Court ruled, courts should look at whether prosecutors had shown that Counterman had made the threats recklessly – that is, whether he was aware that the recipient, local Colorado musician Coles Whalen, could regard his speech as a threat, but made them anyway.

Justice Elena Kagan wrote for the court, with an opinion that was joined by Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson. Justice Sonia Sotomayor wrote an opinion, joined by Justice Neil Gorsuch, in which she agreed with the result that the court reached but not all of its reasoning. Justice Clarence Thomas filed a dissenting opinion and joined a dissenting opinion by Justice Amy Coney Barrett.

The events leading to Thursday’s ruling began nearly a decade ago, when Counterman sent a Facebook friend request to Whalen, a singer-songwriter then based in Denver whose career was on the rise. Over the next few years, Counterman sent messages to Whalen that she described as “weird” and “creepy,” and although she attempted to stop the messages by blocking him on Facebook, Counterman would simply create new accounts.

When the messages became increasingly menacing – referring to having seen her in person and suggesting that she should die – Whalen’s mental health declined. She canceled appearances, started to carry a gun, and eventually left Colorado for the east coast.

Prosecutors in Colorado charged Counterman with stalking. At trial, he argued that his messages to Whalen were not “true threats” because he didn’t actually intend to harm Whalen; instead, he contended, they were speech protected by the First Amendment. The trial court rejected that argument and he was convicted and sentenced to four-and-a-half years in prison; a Colorado appeals court upheld his conviction in 2021.

Counterman came to the Supreme Court last summer, asking the justices to weigh in. In a 14-page opinion on Tuesday, the justices sent his case back to the state courts, holding that the state courts should have applied a different test to determine whether Counterman’s statements were “true threats.”

Kagan declined to adopt the objective standard proposed by Colorado, and on which the state courts relied to convict Counterman. Using an objective standard, she explained, that looks only at “how reasonable observers would construe a statement in context,” would also suppress speech that was not a true threat, because people would not want to run the risk that their non-threatening speech would be misunderstood, leading to jail time.

A subjective standard is the proper test, Kagan concluded – but which one? She concluded that a recklessness standard, which for cases involving true threats “means that a speaker is aware ‘that others could regard his statements as’ threatening violence and ‘delivers them anyway,’” is most appropriate. Such a test, she reasoned, strikes the proper balance between avoiding suppressing non-threatening speech, on the one hand, and on the other hand allowing states to effectively protect “against the profound harms” that can flow from true threats.

Kagan acknowledged that, “[a]s with any balance, something is lost on both sides: The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats. But in declining one of those two alternative paths,” she continued, “something more important is gained: Not ‘having it all’ — because that is impossible — but having much of what is important on both sides of the scale.”

In Sotomayor’s view, the court should not have decided whether the recklessness test should be used in all cases involving true threats. Colorado declined to rely on a recklessness standard, she noted; moreover, because Counterman was prosecuted for stalking, the “true threats” exemption from the First Amendment is not at issue in his case. But she suggested that a more stringent standard should apply to “true threat” prosecutions. “Especially in a climate of intense polarization,” she wrote, “it is dangerous to allow criminal prosecutions for heated words based solely on an amorphous recklessness standard.”

Barrett would have upheld the state court’s decision and Counterman’s conviction. She emphasized that true threats are not protected by the Constitution because they “carry little value and impose great cost.” An objective test is appropriate to determine whether something is a true threat, she wrote, because neither the social value of a threat “nor its potential for ‘injury’ depends on the speaker’s subjective intent.”

Barrett also expresses skepticism about the prospect that using an objective test to determine whether speech is a true threat will suppress non-threatening speech. There are already two safeguards in place to prevent such suppression, she contended. “First, only a very narrow class of statements satisfies the definition of a true threat”: it must be an “intent to commit an act of unlawful violence,” directed at a particular person or group of people. And the speech must also “be deemed threatening by a reasonable listener who is familiar with the ‘entire factual context’ in which the statement occurs.”

“The bottom line,” Barrett concluded, is that Counterman “knew what the words mean. Those threats caused the victim to fear for her life, and they ‘upended her daily existence.’”

In a solo dissent, Thomas criticized what he characterized as the majority’s “surprising and misplaced reliance on New York Times v. Sullivan,” the court’s landmark decision holding that the First Amendment limits the ability of public figures to recover damages for defamation unless they can show that the statement was made with “actual malice.” “Like the majority’s decision today,” Thomas wrote, “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”

This article was originally published at Howe on the Court.