When Is a Threat a Threat?: A Forthcoming SCOTUS Ruling Could Have a Sweeping Impact on Gender-Based Violence

The Supreme Court seems inclined to ignore the collateral damage of protecting harassers—which will have devastating consequences for victims of abuse.

About 85 percent of women and girls globally have experienced some form of online harassment and abuse, and women are four times more likely to experience stalking than men. (perinjo via Getty Images)

The Supreme Court heard oral arguments on April 19 in a case that could have a sweeping impact on the ability of victims of stalking, verbal abuse and online harassment to be protected from their abusers.

In the case, Counterman v. Colorado, the Court appeared willing to increase the threshold for identifying speech that rises to the level of a “true threat” and overturn a criminal stalking conviction as an infringement of the harasser’s constitutionally-protected First Amendment right to speech. Victim’s rights advocates and the state of Colorado warned that modifying the standard would have devastating consequences for victims of abuse and handicap prosecutors who would need to prove that an abuser intended to threaten the victim, rather than that a reasonable person would find the speech threatening.

The case is an appeal from Billy Raymond Counterman, a Colorado man who sent hundreds of thousands of unsolicited messages to a local female musician, C.W., over a period of two years. The victim repeatedly blocked him on social media, but he opened new accounts to continue sending intimate messages that made little sense, became more demanding and indicated that he might be following her movements. The messages terrified the victim, who took self-defense measures, hired security and feared public performances. Counterman was convicted of stalking and sentenced to more than four years in prison.

In his appeal, Counterman argues that determining whether speech constitutes a true threat should focus on the mental state of the speaker rather than, as in current Colorado law, whether a reasonable person would find the speech threatening. Since he never intended the messages to be threatening, Counterman asserted they should be protected by the First Amendment.

Victims’ and women’s rights advocates—including Legal Momentum, the Feminist Majority Foundation, the National Crime Victim Law Institute and AEquitas—argued in an amicus brief that considering the speaker’s subjective intent would jeopardize future stalking prosecutions, as well as civil protection orders, and create another hurdle to prosecution in such cases, which are already underreported and lead to arrests in less than 8 percent of cases.

Attorney Jennifer Becker, legal director at Legal Momentum, explained, “If we eliminate the objective standard we lose the ability to consider the contextual, individual experience of the survivor. Abusers will be more easily able to argue ignorance of the impact of their statements when really their threats are part of an overall pattern of abusive conduct aimed at exerting power and control over the survivor but accomplished in part by speech that, when isolated, might appear innocuous to others.”

In fact, stalking statutes seek to protect victims from behavior that is not threatening in isolation but is threatening considering the totality of the circumstances. According to data, women are four times more likely to experience stalking than men, adding a gender element to the case.

Centering the subjective intent of the stalker would limit consideration of the devastating and long-lasting impacts of the threats on the victim, which are just as damaging as physical violence. Applying this standard would also potentially entitle the delusional rantings of a mentally ill stalker who did not have the requisite subjective understanding of the threat to constitutional protections prohibiting criminalization of the speech.

Twenty-five states supported the conviction, arguing that prosecutors need latitude to protect victims, and that a subjective intent requirement would be onerous and difficult to prove. Research has shown that threatening speech often leads to physical violence, and imposing a higher burden would prevent them from addressing threatening conduct before it results in violence.

Counterman’s position was supported by civil liberties organizations, including the American Civil Liberties Union, which argued that punishing “speech even where the speaker does not intend to threaten … runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed.” The ACLU warned that ignoring the speaker’s intent would “inevitably deter speech made for lawful purposes and speech that is not actually threatening.”

During oral arguments, the justices generally expressed skepticism for the idea that the intent of the speaker should not be considered when determining whether speech is threatening. The conservatives on the Court lamented society’s increased sensitivity—or as Justice Clarence Thomas put it, “hypersensitivity”—which makes considering the speaker’s subjective intent necessary to avoid holding speakers liable—in Justice Neil Gorsuch’s words—“willy-nilly.”

The hand-wringing over sensitivity tracks conservative arguments that individual liberties, including free speech, are under threat. But, as Justice Elena Kagan noted, it is unclear what type of truly valuable speech would be chilled as a result of continuing with the current reasonable person standard.

Becker of Legal Momentum added, “There was some disappointing questioning and commentary that made light of the sorts of threats Counterman made to C.W. and a minimization of stalking victimization, especially that carried out via technology and through threats. Joking and laughing about there being an oversensitivity to receiving threats and that our typical everyday familial interactions involve the sort of threats involved in stalking. We would expect that today, in the highest court in the land, there would be a greater understanding and respect for the realities of stalking and gender-based violence.” 

While it is impossible to read the tea leaves, the Court’s decision in a 2015 case, Elonis v. United States, provides some clues. In that case on a related issue, Chief Justice John Roberts wrote that wrongdoing “must be conscious to be criminal” and Justice Samuel Alito suggested that a speaker must be “aware that others could regard his statements as a threat, but he delivers them anyway.” During oral arguments in Counterman, Alito again suggested applying this recklessness standard, which could protect Counterman’s speech.

Requiring consideration of the speaker’s mental state will undoubtedly make it more difficult to hold stalkers and harassers accountable for objectively threatening speech, and increase the burden for the majority female victims of stalking and verbal abuse seeking legal protection. Yet, the Court seems inclined to ignore the collateral damage of protecting harassers to make a broader political point, buttressing the argument that the Court has become an overtly political institution hostile to women.

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Michelle Onello is an international human rights lawyer and senior legal advisor at the Global Justice Center, a nonprofit organization that uses international law to advocate for gender equality and reproductive rights.