U.S. Supreme Court

SCOTUS overturns 'true threats' conviction, working in reference to New York Times v. Sullivan

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“Like threats,” wrote Justice Elena Kagan, “incitement inheres in particular words used in particular contexts: Its harm can arise even when a clueless speaker fails to grasp his expression’s nature and consequence." Image from Shutterstock.

The U.S. Supreme Court ruled 7-2 on Tuesday that the First Amendment does not protect statements made by a defendant if they “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

In adopting that standard, the Supreme Court vacated the threats conviction of defendant Billy Counterman, who sent hundreds of Facebook messages to a local singer and musician referred to as C.W. The singer repeatedly tried to block Counterman, but he persisted by creating new Facebook accounts.

Counterman had urged the Supreme Court to rule that he can’t be convicted for statements that he didn’t subjectively intend as threats. Colorado had argued that there was no need for the state to show any kind of subjective intent to threaten if a reasonable person had viewed the Facebook messages as threatening.

The majority opinion by Justice Elena Kagan concluded that the state must show recklessness by the defendant, but there is no need to prove “any more demanding form of subjective intent to threaten another.”

In support of her conclusion, Kagan cited New York Times v. Sullivan, the 1964 Supreme Court decision that bars defamation lawsuits by public figures unless they can show “actual malice” by the speaker. That standard bars recovery, unless the speaker’s statements were false or made with reckless disregard for the truth.

Kagan’s analysis drew the ire of Justice Clarence Thomas, who has previously urged the Supreme Court to reconsider New York Times v. Sullivan. In his dissent in the “true threats” case, Thomas said the majority’s reliance on the decision was “surprising and misplaced.”

A defendant’s mindset is also at issue in obscenity and incitement prosecutions, Kagan said.

“Like threats,” Kagan wrote, “incitement inheres in particular words used in particular contexts: Its harm can arise even when a clueless speaker fails to grasp his expression’s nature and consequence. But still, the First Amendment precludes punishment, whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

Kagan’s majority opinion was joined in full by Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson.

Justices Sonia Sotomayor and Neil Gorsuch concurred in the judgment; Gorsuch joined Sotomayor’s opinion but not a section discussing New York Times v. Sullivan. Gorsuch has also called for the reconsideration of New York Times v. Sullivan.

Counterman was charged with violating a Colorado statute that bans threatening speech that “would cause a reasonable person to suffer serious emotional distress” and does cause the victim such distress.

Kagan described Counterman’s messages. Some of the statements—such as “I am going to the store would you like anything?—were “utterly prosaic,” except that they were coming from a total stranger, Kagan said. Some—such as a reference to a “fine display with your partner”—suggested that Counterman might be surveilling C.W.

“And most critically,” Kagan wrote, “a number expressed anger at C. W. and envisaged harm befalling her.” Those messages included, “F- - - off permanently,” “Staying in cyber life is going to kill you,” and “You’re not being good for human relations. Die.” Kagan used the full F-word in her opinion.

The messages placed C.W. in such fear that she had trouble sleeping, stopped walking alone, turned down social engagements and canceled some performances.

The only evidence that the state sought to introduce at trial consisted of the Facebook messages.

A trial court ruled that the state had to only show that a reasonable person would have viewed the Facebook messages as threatening, and there was no need for prosecutors to show that Counterman had any subjective intent to threaten. The trial court ruled that Counterman’s statements met the standard, and the prosecution could proceed. Counterman was convicted in a jury trial.

Counterman had argued that some kind of intent requirement is needed to avoid chilling speech that is protected by the First Amendment.

“To combat the kind of chill he references,” Kagan wrote, “our decisions have often insisted on protecting even some historically unprotected speech through the adoption of a subjective mental state element. We follow the same path today, holding that the state must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character.

“The second issue here concerns what precise mens rea standard suffices for the First Amendment purpose at issue. Again guided by our precedent, we hold that a recklessness standard is enough.”

Because Counterman’s statements were judged by an objective standard, without any assessment of awareness on his part, his conviction must be vacated as a violation of the First Amendment, Kagan said.

Justice Amy Coney Barrett also dissented in the case. Thomas joined her opinion.

The majority “unjustifiably grants true-threats preferential treatment” by holding that speakers “must recklessly disregard the threatening nature of their speech to lose constitutional protection,” Barrett wrote.

Barrett pointed out that New York Times v. Sullivan applies only in the case of defamation alleged by public figures. A private person, she wrote, had to only “satisfy an objective standard to recover actual damages for defamation.”

New York Times v. Sullivan “simply raises the bar for borderline unprotected speech with high social value (because of its proximity to public discourse) and low potential for injury (because public figures can engage in counterspeech),” Barrett wrote.

The case is Counterman v. Colorado.

See also:

ABAJournal.com: “Supreme Court will hear case of convicted stalker to decide mental state needed for ‘true threats’ conviction”

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