Writer: Jordan Smith
Editor: Kitty Wang
True threats are one of the few types of speech not constitutionally protected in the United States. As with all categories of unprotected speech, courts have historically exercised great caution when defining exactly what constitutes a true threat. The origin of this legal doctrine can be found in the 1969 case Watts v. United States (“Watts”), which guided future cases by outlining the questions courts must consider to determine whether an ostensibly threatening statement is a true threat. Many cases after Watts have clarified particular elements of this doctrine, but the same guiding inquiries remained in place. However, the recent case Counterman v. Colorado (“Counterman”), decided in 2023, defined a new standard for true threats, and many legal scholars are worried about its implications for the future of free speech in America.
Robert Watts, the petitioner of Watts v. United States, was arrested after making a statement that included the remark, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” (Hudson Jr., 2009). For this comment, Watts was charged under 18 U.S.C. § 871, a federal statute that outlaws threats of bodily harm against the president. Considering only the language of Watts’s statement, it is easy to construe it as a genuine threat against then-President Lyndon B. Johnson. For that reason, Watts was convicted in a federal court following his arrest. However, no statement is made without context. Watts was a recently-drafted protestor speaking to his peers at a protest against police brutality. Watts’s remarks certainly contained inflammatory language, but this was a means to communicate his frustration at the fact that he had recently been drafted to fight in the Vietnam War despite his opposition to U.S. intervention in Vietnam.
Watts’s conviction served as a prime example of the government overreach allowed by statutes that restrict speech on the sole basis of threatening language. The Supreme Court understood this and ruled in favor of Watts with the reasoning that his statement was not a “true threat” and therefore did not violate the statute that he was convicted under. The ruling of Watts guided future true-threats cases by compelling courts to consider the context in which a statement was made, the reaction of the listeners, and whether a threat was conditional or absolute in nature. This newly defined procedure for defining true threats made it clear that any legislation targeting joking statements or political hyperbole would be struck down (O’Neill, 2023). The issue of true threats was far from resolved after this case, but the doctrine had a solid foundation and a clear purpose.
In 2016, Billy Ray Counterman, the petitioner of Counterman v. Colorado, was arrested and charged with stalking for causing serious emotional distress after years of incessantly messaging singer-songwriter Coles Whalen. Counterman’s messages included numerous ominous remarks towards Whalen, including “[s]taying in cyber life is going to kill you,” “[y]ou’re not being good for human relations,” and–most succinctly–“[d]ie” (Harvard Law Review, 2023). Whalen attempted to block these messages, but Counterman made new accounts or found new platforms as necessary to continue messaging Whalen. Counterman’s behavior is an example of what has come to be known as “cyberstalking,” a worrying trend in the internet age. Few would think to analyze such behavior as a free speech issue, but Counterman claimed that his messages were protected under the First Amendment and was eventually able to appeal to the Supreme Court, where his conviction was reversed and remanded to lower courts.
There are three important points contained in the Counterman decision. The first point is implicit in the analysis of the majority opinion. Because this stalking case was analyzed under the true threats doctrine, cases of stalking involving ostensibly threatening communications may now be subject to First Amendment scrutiny. This represents a significant change to the true threats doctrine by incorporating a specific form of threatening conduct, rather than the typical case of seemingly threatening speech. Additionally, while the Supreme Court did not officially overrule the findings of Watts, they reiterated an argument from Elonis v. United States (a previous true-threats case) which claimed that a true threat is determined by the listener’s reaction. Therefore, it is likely that this aspect of a statement’s circumstances will be emphasized in future true-threats cases, rather than considered holistically with the other questions outlined in Watts. This procedural change itself would be enough to raise eyebrows by marginalizing the role of context in determining true threats, but Counterman made a more significant change to the true threats doctrine. By analyzing Counterman’s behavior under the true threats doctrine, the Court gave itself the challenge of defining the burden of proof for both stalking cases and cases of expressive speech. The Court had to find a standard of evidence for the perpetrator’s state of mind to prevent undue burdens upon protected speech while giving prosecutors the tools to address stalking. For this standard, the Court determined that recklessness, a conscious disregard of a significant risk that a statement would be seen as threatening by the recipient, was the appropriate standard.
As you might have noticed, the circumstances of these cases are incredibly different, as are their findings. Watts’s case was a paradigmatic free speech case in which the Court protected the rights of a protestor against an overly broad statute. Conversely, stalking does not typically come to mind in discussions of free speech. Many legal scholars have claimed that the Supreme Court made a misstep in this case by even considering it under the true threats doctrine (Harvard Law Review, 2023). Justice Sotomayor articulated this point in her concurring opinion, arguing that “statements can also be punished if they fall into another category of unprotected speech, such as speech integral to criminal conduct.” Essentially, far less scrutiny needs to be applied to cases where an individual uses speech as part of a criminal act. In the case of stalking, the presence of threatening language in communications is often entirely unnecessary if the prosecution can show that the perpetrator repeatedly and forcefully made unwanted communications to the victim. Considering this, it was incredibly unwise to conjoin stalking with the true threats doctrine. There is relatively little incentive to increase protections for stalkers, whereas protecting expressive speech is of paramount importance. Yet, the Counterman ruling makes the standard for determining the validity of threats in each of these cases one and the same.
By setting the precedent of analyzing stalking cases under the true threats doctrine, this ruling may complicate future cases by emboldening stalkers to claim free speech as a defense. This issue is worsened by the standards laid out in the majority opinion. The recklessness standard, a subjective standard for culpable state of mind, relies on the thoughts of the perpetrator in the prosecution of a crime. This stands in opposition to an objective standard, which considers whether a reasonable person would consider any communication to be threatening in nature. In other words, “the Supreme Court declared that stalking is free speech if the stalker truly believes that his repeated, objectively terrifying conduct is welcome” (Franks, 2023). While Watts defined an area of unprotected speech to clarify the rights of protestors, Counterman departed from precedent to redefine a category of speech and may have encouraged a new wave of deluded stalkers in the process.
While Counterman dealt with the behavior of a stalker, the use of the true threats doctrine in its analysis means that the impact of its ruling will extend far beyond stalking cases. The Supreme Court may have also imposed an undue burden upon constitutionally protected speech in their attempt to clarify the standards of a true threat. In First Amendment legal scholarship, this phenomenon is called a “chilling effect.” While the recklessness standard is not the least protective standard for state of mind, it provides far less breathing room than the intent standard. The adoption of the recklessness standard, combined with the emphasis that the Supreme Court has placed on the listeners’ reactions, greatly complicates the definition of a true threat. Americans will now have to consider whether, given the character of their audience, if there is a “significant” risk that their speech will be taken as a threat. Given the ambiguity of this standard, many people may simply choose to stay silent to minimize personal risk. The majority opinion understood that the recklessness standard would complicate stalking prosecutions, but the Court found it was a necessary protective measure against the chilling of free speech. However, the protection offered by the state’s responsibility to prove recklessness in true-threats prosecutions simply cannot prevent the chilling of protected speech. Allowing statements to be considered as true threats regardless of the speaker’s intention sets a dangerous precedent for the future of free speech in America and may lead to an uptick in self-censorship among the public.
Counterman v. Colorado is a very recent case, so the concrete effects of its ruling are yet to be seen. Yet, fears about the chilling of protected speech are well-founded, as are concerns about the implications for stalking cases. The use of the recklessness standard for a culpable state of mind may stoke fears in the American public that their communications will lead to criminal prosecution. As a result, citizens may become hesitant to engage in public discourse, representing a clear imposition upon protected speech. On the other hand, stalking cases that would have previously been relatively straightforward may now be bogged down with an analysis of the perpetrator’s claims to freedom of speech. The Counterman ruling is a considerable departure from the precedent of historic true-threats cases, and it may have weakened free speech protections and granted a new layer of protection to cyberstalkers in one fell swoop.
References
Harvard Law Review. (2023, November 13). Counterman v. Colorado. Harvard Law Review.
Hudson Jr., D. L. (2009, January 1). Watts v. United States (1969). The Free Speech Center.
O’Neill, K. F. (2023, August 12). True Threats. The Free Speech Center.
Retrieved from https://firstamendment.mtsu.edu/article/true-threats/
Franks, M. A. (2023, July 28). How Stalking Became Free Speech: Counterman v. Colorado and the Supreme Court’s Continuing War on Women. The George Washington Law Review. Retrieved from https://www.gwlr.org/how-stalking-became-free-speech-counterman-v-colorado-and-the-supreme-courts-continuing-war-on-women/
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