The latest free speech battle from Colorado going before the US Supreme Court will test the state’s stalking laws
“I think that really underscores the kind of mistakes that can happen here,” said John Elwood, a Washington, DC-based attorney who will be representing Counterman’s case in the Supreme Court. “There’s quite a consensus that Mr. Counterman had mental health issues… The words that came out of someone’s mouth, he really didn’t take them as a threat. There’s real reason to believe he didn’t get it that way.”
The state of Colorado disagrees.
“The facts here are really compelling,” said Attorney General Phil Weiser, whose team will defend the state’s stalking law. “This is not a new issue in the sense that we have had this in person, over the phone or in writing. And it’s happening now on social media. The difference is that it’s easier to make threats on social media, and our position is: the nature of the threat doesn’t have to be different. If someone said all of this in person, “I’m watching you. I saw you the other night. I will keep watching you and I want you to die.’ This is functionally the same as saying it over Facebook.”
“This area of law is currently a mess”
Genuine threats are a category of speech not protected by the First Amendment, similar to obscenity or child pornography. Currently, there are differing standards in state and higher courts as to whether the person making the statement was actually meant to be threatening or whether it was merely perceived as threatening, which legal professionals call objective or subjective intent.
In Colorado, it doesn’t matter if the speaker intended a threat, but if law enforcement finds them “objectively” threatening and the victim feels threatened, that’s enough for a prosecutor’s indictment in the judiciary.
“The Supreme Court has to pick cases, they have to adopt a standard that works for all types of speech,” Elwood said. “It’s about political speech and all kinds of speech on the internet.”
Free speech advocates say the national standard should be lower than the Colorado prosecutor’s standard. That is, they believe that it must be proven that a person objectively knew that they were making threats and that the victim suffered from those threats as well.
“This area of law is a mess right now. Dozens of different federal and state courts use at least three different versions of this,” said Jay Schweikert, research fellow at the Cato Institute. Schweikert plans to write an amicus brief on Counterman’s behalf. “We believe that for something to be considered a real threat, it must be intended as a threat and received as a threat.”
Second free speech case from Colorado
This is the second First Amendment case to be heard in the nation’s highest court this year.
In December, judges weighed whether a Colorado-based website designer could refuse to create wedding websites for gay couples under the state’s Public Accommodations Act. The designer argues that being forced to accommodate gay couples violates her right to free speech to create the products she wants.
The stalking case puts Weiser in the same camp as law enforcement and victims’ rights advocates, both of whom say making it easier for people to make all sorts of threats — online or in person — would compromise public safety.
Weiser said he was very concerned about the current level of domestic violence in Colorado.
“We are in a time of increasing, threatening discourse and violence in ways that are making people feel less safe,” said Weiser. “And the importance of allowing prosecutions like this against CW is that people are protected before the damage to them gets worse.”
This isn’t the first time the Supreme Court has dealt with a “true threat” to freedom of expression case. Dating back to Alexander Hamilton, the courts have interwoven through state and federal jurisprudence over the years, making various decisions that have never fully settled the issue. That is, attempting to define what types of language or “battle words” are protected by the First Amendment and which are not. These include the different weights that the court gives in this standard to the speaker’s “intent” versus how the victim perceived that speech.
For example, in 2003 the Supreme Court upheld a state law that made it illegal to burn a cross in public or to intimidate others, ruling that burning crosses was a genuine threat designed to cause intimidation.
Problematic precedent?
Libertarians and free speech advocates who will side with Counterman in this case say the case has the potential to set a problematic precedent for cracking down on free speech — particularly the government.
“That’s all George Orwell talked about in his novels,” said John Whitehead, a constitutional scholar and scholar at the Rutherford Institute, a Virginia-based constitutional advocacy group. “I don’t want someone to go to four years in prison like Counterman for what he said. I think the Supreme Court needs to set a really good standard, which is actually a real threat in a case like this.”
Both Whitehead and Schweikert von Cato make a distinction between online language and physical stalking – especially since online language is so much easier to communicate in and of itself.
They also argue that in cases like CW’s, a restraining order might have been enough to protect them — rather than Counterman’s jail time.
“People make a lot of exaggerated criticism of the government online,” Schweikert said. “Imagine a person you would least see as President, of whom you would be most critical, imagine they decided that I felt threatened by this and I decide to prosecute that person, because she made me feel threatened. That’s what this is about.”
But lawyers, arguing on behalf of the victim in this case, call it all exaggeration.
“Those who are saying this is going to be terrible for political speech, let them show a concrete example, they can’t,” Cassell said. “What frustrates me a little is that people are like, ‘Wow, that’s going to be a big change! Really? Well, there are millions of people living in Colorado…they don’t seem to have a problem criticizing their politicians, why is freedom of speech suddenly being suppressed?’”
What about victim protection?
Cassell said if the Supreme Court overturns Colorado’s law, victims won’t have as much protection. He said the problem with a legal standard that looks at whether the speaker “intended” to intimidate is that it exempts from prosecution deranged or otherwise dangerous people who later say they meant nothing by the threats.
“I think it’s important that the law here prioritizes protecting victims, rather than plumbing the depths of a defendant’s mind to find out what they’re thinking,” Cassell said.
The messages CW received from Counterman touched on surveillance, anger, escalation, and indifference to her well-being and life.
One message read, “Was that you in the white jeep?” and “just a few physical sightings” and “a good performance with your partner” and “tell your friend to fuck off” and “you’re not good for interpersonal people.” Relationships. Die. I do not need you.”
Cassell said that if the criminal justice system is to ignore speeches like this, that too sets a dangerous precedent.
“Do we want to live in a society where singers like CW can be threatened by people like Counterman and there’s no way for the criminal justice system to stop that?” he said. “It forced CW to give up on their dream, and to what benefit on the other hand? I see no social benefit in someone like Counterman being able to send thousands of unsolicited communications that a reasonable person would consider a threat.”
Schweikert said he wasn’t arguing about the merit of Counterman’s speech – but the overriding point that people should be able to express themselves online if they don’t mean harm.
“Nobody’s going to look at this news and say, ‘Wow, that’s a super valuable speech,'” he said. “It was scary news at best. Nobody disputes that. But the kind of doctrinal question is that this is an important First Amendment piece of legislation, and if it goes in the wrong direction, it could seriously jeopardize a lot of political speech.”