In Counterman v. Colorado (June 27, 2023), the U.S. Supreme Court held that in order for a defendant to be convicted of a crime for making a threat to another person, the “State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” In other words, the Court held that subjective intent (recklessness) must be required for criminalizing threats. The Court held that objective reasonableness isn’t restrictive enough a standard to criminalize threats.
For a period of years, Counterman harassed a woman online by sending hundreds of Facebook messages. Whenever she would block him, he created a new account and kept sending messages. The messages said that he was watching her, described her activities, and also made angry threats of violence. According to the Court’s summary of the facts:
She believed that Counterman was “threat[ening her] life”; “was very fearful that he was following” her; and was “afraid [she] would get hurt.” As a result, she had “a lot of trouble sleeping” and suffered from severe anxiety. She stopped walking alone, declined social engagements, and canceled some of her [singing] performances, though doing so caused her financial strain. Eventually, C. W. decided that she had to contact the authorities. (citations omitted)
Counterman was convicted of violating a Colorado statute that criminalizes one who:
Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. Colo. Rev. Stat. §18–3–602(1)(c) (2022).
The Court began by stating that “[t]rue threats of violence, everyone agrees, lie outside the bounds of the First Amendment’s protection.” However, the Court held that the absence of a subjective mental state “will chill protected, non-threatening speech” and that at least recklessness must be proven as to the speech’s threatening character.
This holding, however, is problematic for protecting people against online threats of violence. Ironically, under the reckless standard required by Counterman, a deranged stalker will fare better than one who understands what is reasonable; the deranged stalker’s threats can’t be criminalized. The most frightening threats are those by obsessed stalkers who have no awareness of unreasonable they are being. These people are acting beyond reason. They are unhinged.
The First Amendment doesn’t require this heightened standard. The Court seems to forget other contexts where it has maintained a distinction between speech of public concern and of private concern. In the civil law context, negligence has been fine for speech of private concern. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), the Court held that:
We have long recognized that not all speech is of equal First Amendment importance. It is speech on “‘matters of public concern’” that is “at the heart of the First Amendment’s protection.” . . . In contrast, speech on matters of purely private concern is of less First Amendment concern.
The Court in Dun was fine with a negligence standard. Although Dun was a civil case, and Counterman is criminal, the Court’s analysis in Dun is about the nature and value of speech of purely private concern, which doesn’t suddenly change in a criminal case. The Court has long maintained a distinction between speech of public and private concern. I don’t know why the Court abruptly abandoned it Counterman.
As Justice Barrett writes in her dissent:
[T]his case is about the scope of the First Amendment, not the interpretation of a criminal statute. Accordingly, the Court’s holding affects the civil consequences for true threats just as much as it restricts criminal liability. And the civil context underscores the danger of adopting a Sullivan-style buffer zone for true threats.
Consider, for example, threat victims who seek restraining orders to protect themselves from their harassers. Civil orders can also keep individuals away from particular geographic areas. Imagine someone who threatens to bomb an airport, or “shoot up [a] courthous[e].” The speaker might well end up barred from the location in question—for good reason. Yet after today, such orders cannot be obtained without proof—not necessarily easy to secure—that the person who issued the threat anticipated that it would elicit fear. . . .
A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her. The Court’s decision thus sweeps much further than it lets on. (citations omitted)
Threats made to a person are rarely speech of public concern. It is unclear how harassing threats contribute in any way to public discourse. Note that Counterman’s speech is not expressing any ideas to the public; it is solely directed at his victim. Is there any risk that stalkers like this will be chilled in uttering speech of any value? I have little worry that requiring a negligence standard will chill stalkers in penning Shakespearean love sonnets.
The First Amendment doesn’t mechanically protect everything produced by a human. It doesn’t protect burps, farts, beeps, or other noises. Loud noises can be nuisances, and there’s no First Amendment protection. The First Amendment protects instances of expression. But it doesn’t protect all expression equally. A threat to an individual is not any more valuable to public discourse than an annoying noise. In fact, it’s far worse because of the harm that it causes.
Expression that contributes to public discourse gets strong First Amendment protection. Expression of purely private concern does not. Oddly, only Justice Barrett’s dissent mentions Dun & Bradstreet; the majority ignores it.
Unfortunately, the Supreme Court in Counterman takes an overly mechanical view of the First Amendment, transforming it from a meaningful and lofty protection of public discourse and ideas to a thoughtless protection of “noise” that not only lacks societal value but has a negative one.
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Professor Daniel J. Solove is a law professor at George Washington University Law School. Through his company, TeachPrivacy, he has created the largest library of computer-based privacy and data security training, with more than 150 courses. He is also the co-organizer of the Privacy + Security Forum events for privacy professionals.