Speech that threatens others is not constitutionally protected. Does SCOTUS agree? | Opinion

There should be no First Amendment right to use speech to cause a reasonable person to fear for their safety. Based on oral arguments in the Supreme Court on April 19 in Counterman v. Colorado, however, it appears that the justices are likely to make it much harder to prove that speech is a threat.

For over two years, Billy Raymond Counterman sent messages over Facebook to a singer, identified as “C.W.” Sometimes he sent several messages a day; sometimes there were long gaps between messages. Over six years, Counterman sent her over a million messages. C.W. said it was as if Counterman was “trying to continue a conversation with me . . . which I am not engaging in.” Some of Counterman’s messages expressed frustration that C.W. was not responding to him. Over time, his messages became more aggressive.

C.W. said that she became concerned, “canceled a few shows,” and filed a complaint with police.

Opinion

Counterman was prosecuted under a Colorado law that provides for criminal liability if speech “would cause a reasonable person to suffer serious emotional distress.” The Colorado Supreme Court had previously held that conviction requires proof only that the speaker “knowingly” made repeated communications, and does not “require that a perpetrator be aware that his or her acts would cause a reasonable person to suffer serious emotional distress.”

Counterman was convicted and sentenced to four-and-a-half years in prison. The Colorado Court of Appeals affirmed the conviction, and the Colorado Supreme Court denied review. This is the right result: Speech that threatens others is not constitutionally protected. The focus should be on whether a reasonable person felt threatened by the speech, not what the speaker had in mind.

More than a half century ago, in United States v. Watts (1969), the Supreme Court held that true threats are speech unprotected by the First Amendment.

Robert Watts, then 18, attended a rally and stated, “I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” Watts was arrested and convicted for violating a federal law that makes it a crime to “knowingly and willfully” threaten the life of the president.

The Supreme Court upheld the federal statute but reversed Watts’ conviction, saying that while true threats are unprotected by the First Amendment, they must be distinguished from speech that is just hyperbole. Considering the “context, and regarding the expressly conditional nature of the statement and the reaction of the listeners,” the court ruled that Watts’ statement was not a true threat.

The court has reaffirmed that true threats are not protected by the First Amendment, but it has never articulated the standard for determining what constitutes a true threat under the First Amendment. Colorado and a number of other courts use an objective test: Would a reasonable person feel threatened under the circumstances? But a different test is used by many other courts, requiring proof that the defendant subjectively intended to threaten another person.

The Supreme Court should affirm the Colorado courts and make clear that there is no First Amendment right to engage in a prolonged terror campaign against another person. Stalking, in particular, is often a matter of life and death. More than half of female homicide victims were stalked before they were murdered by their stalker, and more than two-thirds of female homicide victims were stalked by their intimate partner before being killed by them.

Yet, at the oral arguments on April 19, a majority of the justices seemed sympathetic to the view that the First Amendment requires proof that the speaker intended to threaten the listener. This would make it much harder to restrain and punish threatening speech.

I am a fervent supporter of freedom of speech, but there’s no First Amendment right to use speech to terrorize or threaten another. My hope is that the Supreme Court will realize this and affirm Counterman’s conviction.

Erwin Chemerinsky is the dean and a professor at the UC Berkeley School of Law.