Supreme Court sets first amendment limits on laws banning online threats

The Supreme Court decided Tuesday that the First Amendment limits laws that make it a crime to make threats on the Internet, requiring prosecutors to prove that defendants acted recklessly by causing emotional harm.

Writing for five judges in the 7-to-2 decision, Judge Elena Kagan took a middle ground.

“The state must demonstrate that the defendant knowingly disregarded a substantial risk that his communications would be perceived as threatening violence,” she wrote. “The state need not prove a more demanding form of subjective intent to threaten another.”

Judge Kagan acknowledged that “genuine threats,” such as libel, sedition, obscenity, and battle words, are not protected by the First Amendment. But she said the risk of deterring protected speech warranted imposing an additional burden on prosecutors.

“The speaker’s fear of being mistaken as to whether a statement is a threat; his fear that the justice system will misjudge that verdict; his fear of at least incurring legal costs — all those costs may lead him to swallow words that are not, in fact, real threats,” she wrote.

The case arose from the fixation of a Colorado man, Billy Counterman, with a singer-songwriter identified in court documents as CW. He messaged her a lot on Facebook and opened new accounts when she blocked him.

“You are no good for human relations,” one message said. “Die. I don’t need you.”

Another asked, “Was that you in the white jeep?”

Judge Kagan wrote that “the messages frightened CW and turned her day-to-day existence upside down”, adding, “She stopped walking alone, refused socializing and canceled some of her appearances, though this caused her financial strain.”

Mr. Counterman was prosecuted under a Colorado law that made it a crime to send repeated messages that would cause a reasonable person serious emotional distress and did cause that harm. He was found guilty and sentenced to four and a half years in prison.

Lawyers for Mr. Counterman argued that the law violated the First Amendment because it did not require proof that he intended to cause the distress.

“The idea that one could commit a ‘speech crime’ accidentally is horrifying,” they wrote in it a letter from the Supreme Court. “Jailing someone for negligently misjudging how others would interpret the speaker’s words would erode the breathing space that ensures the free exchange of ideas.”

State attorneys responded that it was enough to look at the words in question, how they were conveyed and the response they elicited. The subjective intent of the speaker, they said, does not matter.

Justice Kagan analyzed the question by examining how the Supreme Court had dealt with other categories of unprotected speech, particularly libel. Noting that public figures must show at least a reckless disregard for the truth — meaning they must be subjectively aware of probable falsity — to prevail in defamation cases, she said something similar was required in true threat prosecutions.

In the context of threats, she wrote, citing an earlier opinion, recklessness means “that a speaker is aware ‘that others might perceive his statements as ‘threatening violence’ and ‘deliver them anyway’.”

Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Brett M. Kavanaugh, and Ketanji Brown Jackson concurred with Judge Kagan’s opinion.

Judge Sonia Sotomayor, joined for the most part by Judge Neil M. Gorsuch, agreed with Judge Kagan’s bottom line, but for different reasons. She said she would analyze the case as stalking rather than threats.

Judge Clarence Thomas delivered a brief dissenting opinion reiterating his call for the New York Times v. Sullivan landmark 1964 libel case to be reconsidered.

“So it is unfortunate,” he wrote, “that the majority chooses not only to appeal prominently and uncritically to the New York Times, but to extend the flawed, policy-driven analysis of the First Amendment to real threats.” , a separate part of the jurisprudence of this court.”

In a second dissenting opinion, Judge Amy Coney Barrett, joined by Judge Thomas, wrote that an objective standard was sufficient when prosecuting genuine threats.

“It comes down to this,” she wrote, citing sentences from Judge Kagan’s opinion. “Counterman communicated real threats, which, ‘everyone agrees, are beyond the bounds of First Amendment protection.’ He knew what the words meant. Those threats caused the victim to fear for her life and “turned her daily existence upside down.” Nevertheless, the court concludes that Counterman can prevail on a First Amendment defense. Nothing in the Constitution enforces that result.”

The Supreme Court heard a similar case in 2014 involving a Pennsylvania man who was prosecuted for making threats on Facebook in the form of rap lyrics after his wife left him.

Chief Justice John G. Roberts Jr., writing for the majority when the case was decided in 2015, said prosecutors must do more than prove that reasonable people would consider statements to be threats. The defendant’s state of mind is important, the chief judge wrote, though he declined to say exactly where the legal line is drawn.

Judge Barrett suggested that Judge Kagan’s position in the new case, Counterman v. Colorado, No. 22-138, was unconscionable.

“The reality,” she wrote, “is that recklessness is not based on the law, but on a Goldilocks judgment: recklessness is not too much, not too little, but ‘just right’.”

Judge Kagan responded in a footnote saying she was not offended. “In law, as in life,” she wrote, “there are worse things than being ‘just right’.”