Among the many mischievements of its recently completed term, the U.S. Supreme Court made it it harder to hold accountable people who post threats online. You might well consider this ruling unwise in an era of ubiquitous social media, but the justices have demonstrated repeatedly that real world consequences are of little concern to them.
The case at issue involved one Billy Counterman, who developed an obsession with a singer-songwriter identified in court papers as C.W. Over a period of two years from 2014 to 2016, Counterman send hundreds of Facebook messages to C.W., whom he had never met. She did not respond and tried repeatedly but unsuccessfully to block him.
“You’re not being good for human relations,” one message read. “Die. Don’t need you.” Another asked, “Was that you in the white Jeep?” Not surprisingly, C.W. was terrorized. She stopped walking alone, canceled some performances and declined social engagements.
Counterman was eventually charged and convicted under a Colorado law that made it a crime to send repeated communications that would cause a reasonable person to experience serious emotional distress. Counterman’s lawyers moved to dismiss the charges on the grounds that the messages did not constitute “true threats,” which do not enjoy First Amendment protection. The trial court in Colorado rejected that argument, finding that a reasonable person would indeed find the messages threatening.
The Supreme Court, however, determined that the First Amendment requires prosecutors to demonstrate that defendants have some “subjective understanding” of the threatening nature of their statements and recklessly post them anyway. Justice Elena Kagan, writing for the majority in a 7-2 decision, declared that, “The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
That’s because, she wrote, that “the speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs — all those may lead him to swallow words that are in fact not true threats.”
Although we are generally sympathetic to First Amendment arguments, in this instance replacing an objective “reasonable person” standard with a subjective one of intent strikes us as wrongheaded. Plain words communicate meanings that are readily understood by the average person; the speaker’s state of mind is irrelevant to what those words communicate. Besides which, who can determine with any certainty what is going through the mind of someone who is deep in the throes of an obsession? The court has erected a barrier that may be impossible for prosecutors to surmount.
The justices, of course, can afford to indulge a certain level of intellectual abstraction when it comes to threats. According to The Intercept news organization, the court has spent millions of dollars during the past year expanding its security detail to include 400 U.S. Marshals, more than doubling the number of officers assigned to the justices and their residences. This was in response to noisy but nonviolent protests that erupted last year outside the homes of conservative justices in the wake of the Dobbs decision, which eradicated a national right to abortion.
To be fair, the consequences of the Counterman decision are unclear at this point. His conviction was vacated and the case returned to the lower courts so prosecutors can decide whether to retry him under the new standard.
But that it could have consequences close to home may be inferred from a recent New Hampshire Supreme Court ruling that rejected the First Amendment appeal of a stalking protective order issued against a defendant who developed a fixation with a plaintiff identified as S.D. and posted comments and images of a sexual and violent nature about her on internet websites. New Hampshire’s high court applied the “reasonable person” standard in turning down the appeal. One wonders if that ruling would have been different if the new subjective standard had been applied.
When the U.S. Supreme Court returns to business, it will deal not only with threats of violence, but the potential for actual violence. The court ruled last year that firearm restrictions are valid only if government can “demonstrate that the regulation is consistent with this nation’s historical tradition of firearms regulation.” The chaos this radical departure unleashed included a U.S. Court of Appeals ruling invalidating a federal law that prohibits people subject to domestic violence orders from possessing firearms, on the grounds that there was no historical precedent for it. Unless you enjoy the protection of U.S. Marshals, the prospect that the Supreme Court will uphold that ruling should scare the heck out of you.