In social media stalking case, Supreme Court considers scope of ‘true threat’

The Supreme Court on Wednesday weighed how it could determine what constitutes a “true threat” by an individual and whether a reasonable person’s detection of a threat would effectively chill free speech.

The court heard oral arguments in a case involving Colorado musician Coles Whalen and Billy Counterman, whom a Colorado jury found guilty of stalking after he sent repeated Facebook messages to Whalen, including telling her to “die” and “f— off permanently.”

Counterman, who sent Whalen more than 1,000 messages that ranged from affectionate to aggressive over several years, appealed his conviction to justices on First Amendment grounds.

No one disputes that the musician felt threatened. But Counterman, who was diagnosed with a mental illness, contends his conviction should be reversed because he did not personally intend for the statements to cause fear.

That has left the high court debating the question of where does a “true threat” lie: In the speaker’s intent or in the eyes of the communication’s receiver.

Counterman’s attorney, John Elwood, asserted during Wednesday’s oral argument that the objective standard used previously in the case — that a reasonable person would have considered his messages as threats — would effectively stunt the First Amendment.

The Supreme Court decades ago established a category of “true threats” that is not protected by the First Amendment, but Counterman’s case provides a pathway for the justices to clearly define the free-speech exception.

Many of the justices appeared poised to favor that the speaker’s state of mind — in this case Counterman’s — known as mens rea, is relevant, with some suggesting a recklessness standard could be used.

“If you don’t have some sort of subjective intent in a circumstantial case, you’re baking in the objective reasonable viewer a sort of bias to whatever that jury thinks might be the community standard,” said liberal Justice Sonia Sotomayor.

Meanwhile, some of the court’s conservatives portrayed the country as becoming too hyper-sensitive as they questioned how a reasonable juror in today’s society would decide if a statement amounted to a threat.

Justice Neil Gorsuch noted that some professors provide “trigger warnings” before discussing difficult subjects.

Fellow conservative Justice Clarence Thomas similarly asked, “We’re more hyper-sensitive about different things now, and people can feel threatened in different ways. So I don’t know how you’re monitoring that. What if it’s now that people are more sensitive, that that is now considered the reasonable person?”

Colorado, which is backed by the Justice Department, is urging the high court to affirm lower court rulings that convicted Counterman, arguing that the harms of the threat in no way depend on the threatener’s subjective intent or knowledge.

Conservative Justice Brett Kavanaugh in particular noted the government’s argument that following Counterman’s position could limit prosecutions of those who threaten the president and other public officials.

“A defense like the one that would be present with your mens rea would make it too easy for someone to say, ‘oh, I was just joking, I was just kidding,’ and therefore threats that would be really quite dangerous in terms of leading to the next step of actually carrying through with the threat will not be addressed. How do you respond?” Kavanaugh asked.

A number of the justices appeared to favor a recklessness standard, which in some respects would form a middle ground. Such a standard would factor in the speaker’s state of mind without requiring a more heightened standard of intent or knowledge.

“Why wouldn’t recklessness be sufficient,” asked conservative Justice Samuel Alito. “It means it’s culpable. Reckless conduct is morally culpable. And a threat causes damage regardless of the intent of the speaker. Why isn’t that sufficient?”

A decision in the case, Counterman v. Colorado, is expected by late June.

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