Supreme Court ruling raises the bar on convicting someone for making threats

Supreme Court upheld that ‘true threats’ are not protected by the First Amendment but raised the bar when considering criminal charges against a person making threanting statements

In order for a person to be successfully prosecuted for making threatening statements, the government must show that they had some understanding of the threatening statements or displayed a “mental state of recklessness”, the US Supreme Court ruled on Tuesday.

The ruling in the case of <em>Counterman v Colorado</em> means it could be more difficult for people to prosecute alleged stalkers or harassers as there is a greater burden of proof beyond the “reasonable person” precedent.

In the 7-2 decision, the Supreme Court enacted a new, less strict, test to consider when speech is not protected by the First Amendment.

“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” Justice Elena Kagan said in the majority opinion.

“The state need not prove any more demanding form of subjective intent to threaten another.”

The ruling does not change the previous definition of a true threat as determined in Virginia v Black (2003), “Where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or groups of individuals.”

But it changes the standard for which a true threat can be held criminally liable

Previously, even if the speaker did not intend to carry out the threat, if a “reasonable person” could determine the statement implied physical danger it was still considered a true threat.

However, what Counterman v Colorado looked at more specifically was whether the “reasonable person” standard was enough to determine whether a true threat was made – especially as it pertains to online messaging and social media.

The case of Counterman v Colorado concerned Facebook messages between Billy Raymond Counterman and Colorado musician Coles Whalen beginning in 2014.

For two years, Counterman, who had been diagnosed with a mental illness, sent “creepy” messages to Ms Whalen, implying that he was watching her or stalking her.

Sometimes the messages were incoherent and strange, other times they were confrontational.

After Ms Whalen had been receiving the messages for a while, she began to feel “fearful” that she was going to be physically hurt by Counterman and obtained a protective order against him. In 2016, Counterman was arrested and charged with one count of stalking (serious emotional distress), one count of stalking (credible threat and one count of harassment.

Counterman was ultimately found guilty of stalking (serious emotional distress) and sentenced to four-and-a-half years in prison. But in the following years, he appealed and claimed his speech should have been protected by the First Amendment because it was not a “true threat”.

During oral arguments in April, Counterman’s attorney, John Elwood, argued that to determine if speech is a true threat there must be a subjective test that analyses the speaker’s intent.

He suggests that objective tests, like the “reasonable person” standard used in Colorado court, risk criminalising “inevitable misunderstandings.”

In the ruling, Justice Kagan said to combat chilling free speech, “Our decisions have often insisted on protecting even some historically unprotected speech through the adoption of a subjective mental-state element. We follow the same path today, holding that the State must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character.”

However, for those who experience harassment or stalking behaviour, the new ruling raises the bar for criminal prosecutions.

During oral arguments, Colorado Attorney General Philip Weiser suggested that adding intent to a true threat made online would make it significantly harder for people being harassed or stalked to seek criminal charges.

Mr Weiser cited a statistic that “90 per cent of actual or attempted domestic violent murder cases begin with stalking” to reiterate the severity of issuing threats online.

While the case is a win for free speech absolutists it also may have unfortunate implications for people trying to protect themselves from what they perceive to be harmful behavior.