Justices hear “true threat” protected speech case

Justices hear “true threat” protected speech case

By Amy Howe

e Supreme Court heard oral argument on Wednesday in the case of a Colorado man who was sentenced to four-and-a-half years in prison for stalking based on the Facebook messages that he sent to local musician Coles Whalen. At issue in the case is how courts should determine what constitutes “true threats,” which are not protected by the First Amendment. At the end of nearly two hours of debate, the justices generally appeared skeptical of Colorado’s contention that courts should use an objective test, that looks at whether a reasonable person would regard the statement as a threat of violence. But it wasn’t entirely clear what test the justices might adopt in its place.

Representing Billy Raymond Counterman, John Elwood urged the justices to eschew the objective test on which the state courts relied to convict his client. He emphasized the negative effects that would flow from such a test, noting that “[c]riminalizing misunderstanding is especially dangerous in an age when so much communication occurs on social media, which brings together strangers in an environment that removes much of the context that gives words meaning.” The objective test, Elwood added, would also chill even legal speech, because speakers will not want to risk prison time if their speech is perceived as a threat.

Colorado Attorney General Philip Weiser countered that adopting Counterman’s subjective intent standard would “enable more harm and less valuable discourse,” because “a serious expression of an intent to cause unlawful physical violence directly causes life-changing harm and does not contribute to the marketplace of ideas.” In particular, Weiser stressed, “requiring specific intent in cases of threatening stalkers “would immunize stalkers who are untethered from reality” and “allow devious stalkers to escape accountability by insisting that they meant nothing by their harmful statements.” “This matters,” Weiser continued, because “threats made by stalkers terrorize victims.”

Describing the various references to the speaker’s intent as “confusing,” Justice Samuel Alito tried to clarify exactly what rule Elwood was proposing.