Supreme Court ruling on threatening speech could have gone too far

“Your (sic) an idiot.” That’s often what passes for thoughtful criticism on social media. Occasionally, though, critics’ opprobrium turns menacing. “It would be a shame if something bad happened to you,” and other variations on that theme, was what I received after my column about crossing a picket line ran, along with pictures of dead rats and people getting beaten up.

Such vague threats have arrived by snail mail, as well. In one case involving multiple contacts, I had to contact the police. It’s an occupational hazard for any public figure.

Prosecuting threatening speech just got a bit more difficult after last week’s Supreme Court ruling in Counterman v Colorado. As a media commentator and as a target of hostile comments, the ruling elicits mixed feelings.

Threats can chill free speech by making targets fearful of expressing opinions. Such speech also pollutes social media and drives decent people away from public forums. On the other hand, prosecution of threatening speech can create of a chilling effect on public discourse if speakers worry a sarcastic joke, hyperbole, or a misunderstanding could land them in court.

The Supreme Court may have achieved the right balance between giving protected free speech “breathing space” while allowing the enforcement of laws against threatening behavior; only time will tell.

The case concerned the stalking conviction of Billy Counterman. Nearly a decade ago he developed an obsession with Denver singer-songwriter Coles Whalen and over two years sent her hundreds of unwanted, unsolicited messages on Facebook. Every time she blocked his account, he opened a new one. Angry that Whalen did not respond to his advances, Counterman sent her angry messages like “You’re not being good for human relations. Die. Don’t need you” and “Staying in cyber life is going to kill you.” Understandably, the singer hired extra security, canceled certain performances, and eventually went to the authorities.

In court, the prosecution had to prove beyond a reasonable doubt that Counterman’s threats were credible, that is, he had the ability and intent to commit violence, and that his recurrent behavior caused the victim serious emotional distress. Counterman was sentenced to four and a half years in prison.

He appealed the conviction on the grounds that he was unaware of the threatening nature of his comments. While the Colorado Court of Appeals upheld the conviction, the Supreme Court reversed the judgment. The majority found that in order to be considered a true threat the state must prove the defendant had to understand that his statements were threatening “based on a showing no more demanding than recklessness.”

Among the types of speech not protected by the first amendment such as defamation against private persons, incitement, deceitful commercial speech, and obscenity, the state need only show that a reasonable person would recognize the speech as such. The words and their context are sufficient to make a determination.

In civil cases concerning defamation of public figures, however, the plaintiff must show that the defendant knew the statement was false or showed or “reckless disregard of whether it was false or not.” A similar standard now applies to threatening speech.

Justice Kagan, writing for the majority, justified this higher standard because, she wrote, “Bans on speech have the potential to chill, or deter, speech outside their boundaries.” To prevent this from happening, the state must show a “culpable mental state.”

Proving a defendant’s culpable mental state isn’t easy and prosecutors may choose not to pursue some cases even when they have merit. Our Attorney General Phil Weiser pointed out during oral arguments that if the court sided with Counterman, states would not be able to punish delusional stalkers. Worse, “devious stalkers” would have a roadmap to “inflict terror with impunity” by interspersing their threats with delusional sounding messages.

If this comes to pass, Counterman will give online bullies greater license to harass innocent victims. Such a license could ultimately erode the public’s support for free speech.

Krista L. Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer

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