Supreme Court revises ‘true’ and ‘reckless’ threats standard in Colorado stalking case verdict

AP Photo/Mariam Zuhaib

• By Ezra Levant

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In a landmark decision, the Supreme Court has overturned the conviction of Billy Raymond Counterman, a Colorado man accused of stalking a musician online. This verdict, which arrived as a 7-2 ruling, sets a new benchmark for "true" and "reckless" threats, aiming to balance freedom of speech with the necessary prevention of genuine threats.

This ruling emerged from an alliance of liberal justices with conservative Justices Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and John Roberts, while Justices Clarence Thomas and Amy Coney-Barret dissented, AP News reported. Counterman's previous conviction for stalking a musician in 2021 was upheld by a Colorado appeals court within the same year.

Justice Elena Kagan, writing for the majority, explained that the defendant must be shown to have consciously ignored the substantial risk of his communications being perceived as threatening violence. However, she clarified that "[t]rue threats of violence are outside the bounds of First Amendment protection and punishable as crimes."

Counterman had reportedly inundated the musician, identified as C.W., with hundreds of messages across several Facebook accounts. His lawyers attributed this behavior to mental illness and a poor sense of humor. The musician, unable to halt the barrage of messages from Counterman's new Facebook accounts and forced to hire security, took legal action against Counterman.

A significant question for the Supreme Court was whether Counterman's statements were "true threats," or if his circumstances and potential lack of intent offered him First Amendment protection. The justices endeavored to strike a balance between safeguarding freedom of speech and protecting citizens from genuine threats.

Kagan acknowledged the challenging balance the court had to maintain, concluding that the ruling, while not being the most speech-protective or sensitive to true threats, still achieved a substantial degree of what was important on both sides of the scale.

This decision was largely influenced by the absence of any physical interaction between Counterman and the alleged victim, with their only contact being via Facebook messages. Therefore, this ruling doesn't impact other stalking-related laws but purely centers on the intent of the individual issuing threats, concerning the First Amendment, Reason reported.

Civil liberties and First Amendment groups have publicly applauded the verdict. Brian Hauss, an attorney with the American Civil Liberties Union’s Speech, Privacy, & Technology Project, praised the decision, noting its importance in fostering public debate and ensuring that unintentional or misinterpreted threatening speech isn't criminalized. The Foundation for Individual Rights and Expression also commended the ruling for raising the threshold for criminalizing speech as a “true threat.”