WASHINGTON — The Supreme Court on Wednesday tackled the question of what types of statements should be considered “true threats.”
The Justices heard oral arguments in Counterman v. Colorado, which examines whether the government must show that a speaker intended to threaten someone, or if it’s enough to show that a “reasonable person” would consider the speech threatening.
This case centers around Billy Raymond Counterman, who was charged with stalking in 2014 after a multitude of Facebook messages to Colorado-based musician Coles Whalen that she said frightened her. The messages included references to killing her.
Counterman was arrested in May 2016 and a jury convicted him of stalking. He received a 54-month prison sentence and has been released.
Diagnosed with a mental illness, Counterman claimed he never actually intended to carry out any of the things he wrote, and that his conviction should be overturned.
The Supreme Court case has the potential to increase prosecutions for threatening speech. The Justices signaled that a decision that favors Colorado could chill free speech, especially online, because people would self-censor in fear that they could be punished for words they did not intend to be threatening.
Justice Samuel Alito provided an example of a married writer who posts a fictional story online about a person who kills their spouse. Alito said each reader could interpret the words differently, and some could deem it threatening based on their individual views.
“This is a problem in Internet communications,” Alito said. They sometimes go out to a “vast and unknown audience.”
“True threats” are not protected under the First Amendment, which holds that threatening speech can be punished if the government can prove that the speaker meant to cause serious intent to harm the receiver.
When questioning John Elwood, who represented Counterman, Justice Amy Coney Barrett asked how a school should respond if a student or teacher says, “I’m going to shoot this place down” and then immediately says it was just a joke.
Barrett’s question came on the heels of the mass school shooting in Nashville, Tennessee last month, which left six people dead, including three children.
Despite the otherwise serious atmosphere, occasional laughter filled the courtroom.
For example, Chief Justice John Roberts asked how some comments Counterman sent could be considered threatening, including one that had an image of a liquor bottle with the caption: “A guy’s version of edible arrangements.”
Colorado Attorney General Philip Weiser, who argued on behalf of the state, did not laugh.
“The threat here is when you put all [of the comments] together,” he said.
Weiser noted that many domestic violence situations begin with stalking. According to the Stalking Prevention, Awareness and Resource Center, 46% of attempted homicide victims reported being stalked before their attack.
Ellwood said a ruling in favor of the state could have a great impact on free speech, adding that a person’s speech could be considered criminal not based on his or her intention, but based on someone else’s interpretation.
The case reached the Supreme Court after the Colorado Court of Appeals ruled in 2021 that Counterman isn’t protected by the First Amendment’s free speech provisions.
In upholding his conviction, a three-judge panel applied state Supreme Court guidance for interpreting threats in the age of social media.
The justices are expected to announce their decision before the U.S. Supreme Court term ends in June.
Correction: In an earlier version of this article, a reference was made to the mass shooting in Uvalde, Texas. It now correctly reads Nashville, Tennessee.
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