When a threat is a real threat, the Supreme Court ponders

Billy Counterman: A Baltimore man sentenced to four-and-a-half years in prison for stalking and killing an ex-wife and family

The Supreme Court could determine that a true threat is defined by the context of a message and whether a reasonable person would feel threatened by it. William & Mary law school professor Timothy Zick commented in The Atlantic last week that regulating unwanted communications like these does not threaten to suppress valuable expression on matters of public concern. “Indeed, threatening communications chill public discussion and instill terror in their recipients. An objective standard recognizes this reality.

Billy Counterman, a man convicted and sentenced to four-and-a-half years in prison for “stalking” Whalen, is at the center of the case.

Counterman inquired about her mom after Whalen had left. At another, he wrote, “Die. Don’t need you,” and in another message he wrote, “I’m currently unsupervised. I also know that it freaks me out.

“He was clearly mentally unstable,” Whalen said in an interview with NPR. He believed that we were in a romantic relationship for a long time. He said that he was seeing me in person without being aware of it. I was terrified.

He was blocked from her account on Facebook numerous times, but would create new accounts and even contact her bandmates. She became so scared that he would emerge from a crowd, potentially lunging at her on stage, that she stopped publicizing her appearances, varied her routes, hired a body guard on one occasion and bought a pepper spray gun that she keeps with her to this day.

She was more anxious after she found out that Counterman had served two jail terms for threatening to kill his ex- wife and family. But even after he was arrested, her fear persisted. Her first panic attack came in Dallas, when she was performing in front of about 300 people.

“I thought I might be having a heart attack, but I left the stage,which I’ve never done in all my years performing,” Whalen said. I sobbed for an hour when I went backstage. I felt so bad. I thought, maybe this isn’t worth it. Maybe I shouldn’t continue.

“It Isn’t My Girl, But It Is Yours,” ACLU Lawyer John Elwood, a Social Justice Attorney, said in a Brief

The ACLU co-signed a brief stating that a large amount of speech on political, social, and other issues occurs online. “The foreseeable audience is broad, diverse, and likely to interpret the speech in myriad ways the speaker never intended” on social media. If intent doesn’t matter people who broadcast messages on matters of public concern might find themselves staring down criminal prosecutions if a jury findsreasonable reactions to their speech.

Lawyer John Elwood of Counterman’s representation in the Supreme Court argues that his client doesn’t know that he was frightening Whalen because he has been diagnosed with a mental illness.

He stated in his brief that a “true threat” standard was necessary to avoid criminalizing misunderstandings. To illustrate the point, he notes that if you hit someone accidentally, you may bruise that person, but that’s not a crime. It’s a crime if you hit someone on purpose.

Noting that early English and American decisions required proof of the speaker’s intent, Elwood argues that in the internet age, “words on the screen are divorced from context.”

The First Amendment, he contends, doesn’t allow the state to punish a person based on what a reasonable person receiving a message might think. The question is what the speaker intends.

Civil liberty groups are in agreement with that argument. According to the Reporters Committee for Freedom of the Press, there are cases where journalists are charged with stalking for leaving derogatory messages for public officials and approaching them at home to get responses for stories.

The ACLU argues that political hyperbole can often be mistaken for a genuine threat. The organization argues that “if one person’s opprobrium is another’s threat,” then there isn’t a demonstration of intent. It adds that the fact that many of these statements occur online “underscores the need for a subjective intent requirement.”

Colorado Attorney General Philip Weiser counters that under Colorado law, the question is whether an objective person in the situation of the victim would feel threatened. The trial in the Counterman case was about that.

He points to briefs filed by victims’ rights organizations and studies showing that, for the victim, the psychological effects of threatening behavior is frequently far worse than an actual assault.

“We live in a time of rising demonization and threats of physical violence and actual physical violence,” Weiser said. “It’s important that the law be able to respond.”

Source: https://www.npr.org/2023/04/19/1169689996/the-supreme-court-ponders-when-a-threat-is-really-a-true-threat

The State of the Art: What’s up with the Internet? “What’s happening in a rock star’s life”, says singer-songwriter C.W. Counterman

“I truly expected to get back out there and be the same me, the old me, that had been performing all these years,” she said. I was shocked to learn I was not the same person I used to be and I had to find a new way to perform.

She gave up performing, moved far away, found a great therapist, got married and had two children. She has now clawed her way back psychologically to performing again, though sometimes tremulously.

She wrote “Stronger” this year and her lyrics read, “I’m not hiding anymore.” It would have been easy to get away from it. I’ve made a decision that I have more to say. I’m singing louder than I was before. I’m singing out loud.”

In 2014, a Colorado singer-songwriter accepted a seemingly innocuous friend request on Facebook. This morning, nearly a decade later, the Supreme Court will hear a case about the fallout — and it might redefine what’s legal to say online.

C.W. said the messages derailed her life and musical career. He continued to contact her despite the fact that she blocked him. She canceled appearances and filed for a restraining order after he asked that she die. A court agreed, saying that the context of the messages — including Counterman’s pursuit of her after she blocked him — made them clearly threatening. Whether the context is enough will be at the center of the Supreme Court dispute.

This is not the first time the Supreme Court has considered the question. Counterman v. Colorado is similar to the United States case in that it is about the limits of threats. A man posted revenge fantasies on Facebook about killing his wife and other people. The Supreme Court reversed his conviction for sending threats due to the way he did it, in one of the first major cases to take on social media. But it didn’t take on the underlying question of what constituted a threat under the First Amendment — particularly in the unique circumstances created by social media.

The Counterman case is indicative of the dark side of online communication. It’s possible to make threatening statements in any medium, but the internet has massively amplified the power of harassers — particularly ones that aren’t engaging in undeniable physical stalking. The Colorado reply brief says the internet has made it easier for strangers to gain access to victims. It’s created a unique threat for people, especially (the brief notes) women, who find themselves catching the ire of total strangers. Stalkers are frequently distracted from reality and thus making their assessment of a threat unreliable. And their behavior can make targets less likely to exercise their own speech rights.

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