Supreme Court Decision on Reckless Speech Will Cost Victims of Stalking and Harassment

The Supreme Court ruling in Counterman v. Colorado will reduce protections for victims of stalking, verbal abuse and online harassment and have a chilling effect on prosecutors.

Women are four times more likely to experience stalking than men, which means that the Court’s decision will have a disproportionate impact on the mostly female victims of stalking and verbal abuse who turn to the legal system for protection. (iStock / Getty Images Plus)

The Supreme Court issued a ruling on June 27 in Counterman v. Colorado, holding that a speaker’s subjective intention must be considered when determining whether speech is a “true threat” and thus punishable notwithstanding the First Amendment. The decision requires that a speaker must have been aware of the “threatening character” of the speech but delivered it anyway, and was thus reckless in their actions. The holding will limit protections for victims of stalking, verbal abuse and online harassment and increase the burden on prosecutors who must now provide evidence of the speaker’s state of mind.

After a surprise holding earlier this month in a voting rights case, Allen v. Milligan, where Chief Justice Roberts and Justice Kavanaugh sided with the three liberal justices to find that Alabama’s voting map was racially gerrymandered, another interesting alignment found Justice Kagan writing the Counterman opinion, joined by Chief Justice Roberts and Justices Alito, Kavanaugh and Jackson. Justice Sotomayor filed a separate concurring opinion, in which Justice Gorsuch joined, and Justices Barrett and Thomas joined in a dissenting opinion.

The majority opinion held that the First Amendment protects speech unless the speaker has “some subjective understanding of his statements’ threatening nature.” To secure a criminal conviction, prosecutors must “show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

The case was an appeal from Billy Raymond Counterman, a Colorado man who sent thousands of unsolicited messages to a local female musician over a period of two years. Though she repeatedly blocked him on social media, he opened new accounts to send messages that she found threatening in their cumulative effect. A jury sentenced Counterman to more than four years in prison for stalking.

In his appeal, Counterman argued that determining whether speech constitutes a true threat must take into account the mental state of the speaker rather than only considering whether a reasonable person would find the speech threatening. Since he never intended his messages to be threatening, he argued that they should be protected by the First Amendment. The Court agreed that Colorado prosecutors should be required to prove that Counterman consciously accepted a substantial risk of inflicting serious harm when he sent his messages.

Lynn Hecht Schafran, senior vice president of Legal Momentum, a legal advocacy organization dedicated to advancing the rights of women and girls, expressed disappointment at the ruling.

“We are disappointed that the Court did not affirm the objective standard for proving true threat and concerned, as both the United States and Colorado warned at oral argument, that any heightened standard would discourage prosecution of true threat stalking cases,” she said. “We are also relieved that the subjective standard the Court adopted was a lower recklessness standard, which will allow victims to educate the court about the context of the stalker’s behavior, explaining why the victim understands as true threat behavior which, to an onlooker, seems harmless.”

The decision was considered a win for civil liberties organizations, including the American Civil Liberties Union, which argued that the First Amendment precludes convicting defendants for speech they did not intend to be threatening. 

While consideration of a defendant’s state of mind—or mens rea—is a hallmark of criminal law, centering the subjective intent of the speaker in cases of stalking and verbal and online harassment, as the Court has done by adopting this recklessness standard, will reduce protections for victims and have a chilling effect on prosecutors wary of this heightened requirement.

Women are four times more likely to experience stalking than men, which means that the Court’s decision will have a disproportionate impact on the mostly female victims of stalking and verbal abuse who turn to the legal system for protection. And the Court’s ruling doesn’t just raise the bar for Colorado prosecutions: Twenty-five states with similar laws, who supported Counterman’s conviction, will now have to apply this recklessness standard.  

Applying a recklessness standard will make it impossible to hold speakers accountable for objectively threatening speech if prosecutors cannot prove that the speaker knowingly disregarded a substantial risk that the speech would be considered threatening.

The Court’s concern about chilling non-threatening speech will come at a cost, as prosecutors will be discouraged from bringing cases where it would be difficult to prove recklessness, even if the victim was significantly harmed. The cost, therefore, will be paid by the mostly female victims of stalking and online and verbal harassment who won’t be given the protections they deserve.

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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.