SCOTUS: Counterman v Colorado - Free speech / stalking

Issue before or regarding the Supreme Court of The United States

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SCOTUS ruling in Facebook threats case "neither the most speech-protective nor the most sensitive to the dangers of true threats." For statements to be considered true threats, unprotected by the First Amendment, the person making them must have some understanding the statements could be construed as threatening, the Supreme Court held yesterday. The case—Counterman v. Colorado—involves a defendant convicted of stalking after sending a bevy of Facebook messages to someone identified as C.W.

In a 7-2 ruling issued yesterday, the Court vacated the conviction and remanded the case back to the lower court. The court's three liberal justices were joined by Justices Brett Kavanaugh, Neil Gorsuch, John Roberts, and Samuel Alito.
The majority's opinion explains:

The law of mens rea offers three basic choices. Purpose is the most culpable level in the standard mental-state hierarchy, and the hardest to prove. A person acts purposefully when he "consciously desires" a result—so here, when he wants his words to be received as threats. … Next down, though not often distinguished from purpose, is knowledge. Ibid. A person acts knowingly when "he is aware that (a) result is practically certain to follow"—so here, when he knows to a practical certainty that others will take his words as threats. A greater gap separates those two from recklessness. A person acts recklessly, in the most common formulation, when he "consciously disregard(s) a substantial [and unjustifiable] risk that the conduct will cause harm to another." That standard involves insufficient concern with risk, rather than awareness of impending harm. But still, recklessness is morally culpable conduct, involving a "deliberate decision to endanger another." In the threats context, it means that a speaker is aware "that others could regard his statements as" threatening violence and "delivers them anyway."
... the Court does not take lightly the idea that speech can cause harm even when it is not explicitly intended as a true threat. But in considering a speaker's intent but also holding it to the lower recklessness standard, the Court attempts to balance the competing interests of protecting free expression (and avoiding overcriminalization) and protecting against the harms that can come from true threats of violence.

So, it's frustrating to see some portray this ruling as "gut[ting] protections for cyberstalking victims" or decree "that stalking is free speech."

In Counterman's case, he was not convicted for physically stalking C.W. but rather for his communications, so the idea that this reaches all sorts of stalking is wrong.

Nor does the fact that these were Facebook messages make a difference. The court's ruling turns on the intent of the speaker, not whether their messages were sent via social media or the Postal Service.

The ruling has been commended by civil liberties and First Amendment groups.

"We're glad the Supreme Court affirmed today that inadvertently threatening speech cannot be criminalized," Brian Hauss, a senior staff attorney with the American Civil Liberties Union's Speech, Privacy, & Technology Project, said in a statement. "In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received. The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly."

"Today's Supreme Court decision in Counterman v. Colorado is largely good news for the First Amendment because it sets a higher bar for punishing speech as a 'true threat,'" commented the Foundation for Individual Rights and Expression (FIRE) on Twitter. "Fewer prosecutors will be able to criminalize speech tomorrow than was possible yesterday."

"FIRE and other civil liberties organizations had also advocated for an even stricter First Amendment test beyond recklessness to ensure that Americans would not face prosecution for parody or political commentary that unintentionally seemed threatening to a 'reasonable person,'" notes the organization. "While the Court did not adopt the stricter standard, we are heartened by the Court's statement that hyperbole will not constitute a true threat and that recklessness sets a high bar for any prosecution."

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