True Threats, Free Speech, and Federalism
By Eric Segall
Tomorrow the Supreme Court hears oral arguments in Counterman v. Colorado, which raises the issue whether the first amendment prohibits the State of Colorado from prosecuting people for stalking under an objective test that does not require proof that the defendant subjectively intended to harm his victim (disclaimer: Mike and I both signed on to a brief in the case on the side of the state).
The defendant in the case sent numerous threatening and harassing social media messages to the plaintiff which would have objectively scared just about anyone. Even after the victim repeatedly blocked him, he found a way to send her more vile communications. Nevertheless, there is a circuit split over whether a person can be punished for this kind of abuse without proof of specific intent to harm. For the reasons discussed below, the first amendment should not disable state governments from punishing true threats where an objective observer taking into account all of the circumstances would believe he or she is at risk.
The facts of this case are alarming but tragically not unusual. C.W., an aspiring songwriter and performer, accepted a Facebook friend request from Billy Counterman, who sent her messages that, according to the State, "escalated into alarming claims and aggressive invectives.... C.W. cancelled shows, declined engagements, and withdrew from public appearances. Her mental health deteriorated."
Here is a list of some of the threatening and disturbing messages C.W. received from Counterman:
“Was that you in the white Jeep?” “Five years on Facebook. Only a couple physical sightings.” “Seems like I’m being talked about more than I’m being talked to. This isn’t healthy.” “I’ve had tapped phone lines before. What do you fear?” “How can I take your interest in me seriously if you keep going back to my rejected existence?” “Fuck off permanently.” “Your arrogance offends anyone in my position.” “You’re not being good for human relations. Die. Don’t need you.” “Talking to others about me isn’t prolife sustaining for my benefit. Cut me a break already.... Are you a solution or a problem?” “Staying in cyber life is going to kill you. Come out for coffee. You have my number.” “A fine display with your partner.”
During this period, Counterman was already on probation for making threats over the internet.
Counterman was charged with violating a Colorado law prohibiting "stalking-mental distress." This statute prohibits “knowingly” and “repeatedly” following, approaching, contacting, placing under surveillance, or making any form of communication “in a manner that would cause a reasonable person to suffer serious emotional distress." The law requires both that the defendant knowingly communicate with the victim and that the victim suffer serious emotional distress, but it does not have a mens rea requirement that the plaintiff intended to threaten the victim.
Counterman's primary arguments were that he did not intend to threaten C.W. and that his anxiety and depression made him think that he was just engaging in non-threatening conversations with C.W. He was found guilty and sentenced to 4 1/2 years in prison.
The Supreme Court has long held that "true threats" are not protected speech under the first amendment but there has been much uncertainty over what constitutes such a threat. Perhaps the most important disputed point is the one at issue in Counterman: does the government have to prove beyond a reasonable doubt that the defendant subjectively intended to threaten the victim? This is not just a technical issue. Proving the defendant's state of mind is often difficult and if required will likely lead to far fewer successful prosecutions for extremely dangerous and threatening speech.
The conflicting policy arguments at stake are not difficult to identify. On the one hand, as the brief Mike and I signed on to argued:
Stalking is a uniquely dangerous form of conduct that provides the clearest possible case for a constitutional rule that general intent—as opposed to a specific intent—is all that is required for the regulation and prosecution of the historically unprotected category of true threats. While stalkers frequently fail to grasp the objective reality of their actions, this capacity for delusion makes them more, not less, dangerous. Stalkers often believe that their victims should welcome rather than fear their attention, but the First Amendment does not require objectively terrifying conduct to receive heightened constitutional protection simply because it is based on an unreasonable belief or expectation. A specific-intent requirement for stalking and other threats undermines, rather than protects, First Amendment values, including by depleting the marketplace of ideas, inhibiting counter-speech, and interfering with individual autonomy and association.
On the other hand, whenever the government punishes speech, first amendment values come into play. Were juries allowed to punish people for expressions that does not rise to the level of true threats, speech may well be stifled or self-censored. As Counterman argues in his brief:
Colorado’s purely objective standard poses two particular risks to free expression. First, criminalizing speech raises special concern under the First Amendment because the severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images..... Second, basing liability solely on the objective reasonableness of the recipient’s reaction represents a negligence standard.... [But] imposing criminal liability under a pure negligence standard—essentially criminalizing misunderstandings—chills broad swaths of protected speech, including political speech, minority religious beliefs, and artistic expression. Colorado’s negligence standard is especially dangerous during the Internet age, because social media brings together strangers in an increasingly polarized society while simultaneously removing nonverbal cues that provide critical context about meaning.
People can reasonably disagree about how to weigh the conflicting goals of protecting people from true threats but also not imposing criminality in a way that stifles too much speech. And no one is arguing that states must apply an objective test. The constitutional issue is over whether the states are disabled by the first amendment from criminalizing objectively threatening behavior without proving specific intent to harm. As a matter of constitutional interpretation and federalism, the answer should be easy. The Court should announce that the first amendment is agnostic on the question and states may, if they choose, define the elements of criminally threatening stalking without requiring proof of subjective intent. States should also be free to reach the opposite conclusion if they so choose.
The text of the first amendment sheds no light on this question. The original public meaning of the first amendment sheds no light on this question because the founders' views on free speech rights were so vastly different from ours. At the time of the founding, the first amendment was a prohibition on prior restraints and not a limit on government punishing speech after-the-fact. As Professor Jud Campbell has argued, virtually none of the many legal doctrines surrounding free speech created by the Supreme Court starting in the 20th century can be traced back to originalist sources. And, good faith readers of the Court's prior free speech cases can reasonably disagree over what those precedents suggest about the subjective/objective issue.
Is it a good idea for an unelected, life-tenured Court to impose a national rule on how states go about deterring stalking and harassing conduct while also being mindful of free speech values? I do not think so. As long as the state's rules aren't obviously too restrictive of free speech, and as long as judges are allowed to overturn jury verdicts that impose penalties on protected speech, the decision whether to adopt an objective or subjective test (or both) for targeted, threatening speech should remain with the states. The Constitution simply does not speak to this specific question and we should not pretend that it does.
The reality is that stalking is a major problem in this country especially for women. As we said in our brief:
Stalking remains an under-reported and under-prosecuted crime. Even as awareness of the prevalence and impact of stalking is increasing, reporting, arrest, and conviction rates for stalking remain low. For example, less than 29% of all stalking victims reported the victimization to police in 2019. One in five victims who have reported stalking to law enforcement say that police took no action. Investigating and prosecuting stalking requires voluminous documentation of repeated incidents and evidence of their impact on victims. These complexities result in low prosecution and convictions rates, with offenders offered the opportunity to plead to lesser charges (that often involve one-time behaviors) or prosecutors dropping charges entirely. Studies show a significantly lower arrest rates for stalking compared to projected stalking rates, even when accounting for underreporting.
The Court should affirm Counterman's conviction for the threatening and harassing messages he repeatedly sent to C.W. The states should be free to decide, within broad parameters, how to balance the twin compelling interests of protecting their own citizens from stalking while not restricting too much speech. The choice between an objective or subjective test is well within the discretion of the states to choose for themselves.