- The Supreme Court heard oral arguments Wednesday in Counterman v. Colorado, a case considering whether a speaker’s intent should be considered when they are accused of making a “true threat.”
- Multiple justices appeared sympathetic to the concern raised by Counterman’s lawyer, John Elwood, that ignoring a speaker’s intent and prosecuting solely based on how a “rational person” would interpret the statement may chill speech.
- Justice Neil Gorsuch noted that people are becoming increasingly “sensitive,” which may lead to speech being deemed “harmful” when it is benign.
The Supreme Court seemed cautious about chilling speech during oral arguments Wednesday for Counterman v. Colorado, a case considering whether a speaker’s intent should be considered when they are accused of making a “true threat.”
For two years, Billy Raymond Counterman repeatedly sent a local musician Facebook messages she found threatening. It earned him a four-and-a-half year prison sentence for stalking, which he disputed on First Amendment grounds, asking the court to consider his mental state because he did not intend the words to be threatening.
The Colorado Court of Appeals rejected Counterman’s argument, but at least some justices appeared sympathetic to the concerns raised by his lawyer, John Elwood, who noted how ignoring a speaker’s intent and prosecuting solely based on how a “rational person” would interpret the statement may chill speech. While allowing consideration of the speaker’s intent likely wouldn’t reduce prosecutions for “true threats,” it would prevent people from self-censoring First Amendment protected speech out of fear a statement may be taken as a literal threat, he explained.
Void of context, Counterman’s statements—which include messages like “Was that you in the white Jeep?” and “You’re not being good for human relations. Die. Don’t need you.”—are open to a range of interpretations.
Justice Roberts read one of the messages aloud, “Staying in cyber life is going to kill you. Come out for coffee. You have my number.”
“How is that threatening?” Roberts asked Colorado Attorney General Philip Weiser. “I can’t promise I haven’t said that.”
Weiser said it’s threatening in the context of stalking, where repeated messages indicate an escalating situation. In similar cases, the actions can turn to physical violence when the stalker is not given what he wants.
Requiring consideration of intent could allow delusional or devious individuals to claim they were just joking and avoid punishment for serious threats.
Justice Neil Gorsuch, along with Justices Clarence Thomas and Amy Coney Barrett, raised concerns about people becoming increasingly “sensitive,” which may lead to speech being deemed “harmful” when it is benign. It’s the same issue raised by a number of organizations in amicus briefs, from the Alliance Defending Freedom to the Foundation for Individual Rights and Expression (FIRE).
While Weiser said a statement must create a fear of unlawful physical violence, not mere offense, to be considered a “true threat,” Barrett pressed him on who exactly counts as the “reasonable person” making this determination.
“Who is the reasonable person?” she asked. In certain settings, such as a college classroom, the average person may find a statement threatening that a non-student would not.
“We’re more hyper-sensitive about different things now,” Thomas noted.
Justice Sonia Sotamayor also appeared concerned about the implications for speech: failing to consider a speaker’s subjective intent is “baking in” bias to whatever the jury thinks, she said.
She brought up Eminem, who has made threats in rap songs, as an example of the need to consider context.
Fringe and minority art can feel “threatening,” Elwood noted, which is exactly why intent must be taken into account.
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