Supreme Court Upholds Right to Free Speech in Online Stalking Case

In a victory for supporters of free speech, the US Supreme Court ruled on Tuesday that a man’s online harassment of a country singer would only be considered illegal if he was aware that his actions could be interpreted as threatening.

The Supreme Court has overturned the Colorado conviction of Billy Counterman, who had accused the western US state of making threats among thousands of unwanted Facebook messages he sent to country singer Coles Whalen between 2014 and 2016.

The US Constitution’s guarantee of free speech does not protect against real threats.

Based on state law, the Colorado court ruled that messages Counterman sent to Whalen — such as “die, don’t need you” and “staying in cyberspace will kill you” — could objectively be considered threats.

Counterman’s lawyer went to the Supreme Court, arguing that the only way to determine whether a message is threatening should be subjective: What was the sender’s intent?

The case sparked interest among free speech advocates, who feared that upholding Counterman’s conviction would chill free speech protections by allowing the prosecution of anyone whose speech another person finds threatening, without proof of intent.

But Colorado had argued that requiring a subjective determination of the sender’s intent would allow the abuse of free speech and specifically immunize stalkers “who are not tethered to reality.”

“Ninety percent of actual or attempted domestic violence homicides begin with stalking,” Colorado Attorney General Phil Weiser had told the court.

But in a 7-2 opinion, the justices rejected Colorado’s arguments.

They said it had to prove that Counterman had at least some knowledge that his messages could be seen as threats.

Writing for the majority, Justice Elena Kagan didn’t fully buy into Counterman’s argument that Colorado had to prove he knowingly threatened Whalen.

Instead, he said, the state only needed to prove that Counterman was reckless.

“The state must show that the defendant knowingly ignored a substantial risk that his communications would be perceived as threats of violence,” he wrote.

Based on legal precedent, Kagan said, “we hold that the recklessness standard is sufficient” to convict.

The negligence standard provides enough “breathing room” for protected speech without sacrificing the ability to enforce laws against real threats, he wrote.

Dissenting, Justice Amy Coney Barrett, supported by Clarence Thomas, said the objective threat standard is supported by established law and enforced in many states.

He said the majority’s decision would make it harder to prosecute actual threats, and that “recklessness” was a weak standard.

“The reality is that recklessness is not based on the law, but according to the Golden Cockerel judgment: recklessness is not too much, not too little, but instead ‘just right’.”

In response, Kagan wrote, “In law, as in life, there are worse things than being ‘right.’