A Mixed Bag in the Stalking/Threats Case

This morning the U.S. Supreme Court decided the stalking/threats case of Counterman v. Colorado, No. 22-138. The decision is a mixed bag for the ability of government to protect people from threats and for its ability to protect people from stalking. To punish speech on the basis that it is a threat, the Court held that, at a minimum, “The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.”

As to stalking by speech (or other communication) the need to invoke the “true threats” doctrine under the First Amendment at all is unclear.

Facts

Billy Counterman was convicted of stalking under Colorado Revised Statute §18-3-602(1)(c). He was obsessed with a singer-songwriter identified in the opinions as “C.W.,” though she appeared in the Supreme Court as an amicus curiae using her full name, Coles Whalen.

Counterman sent Ms. Whalen hundreds of Facebook messages, evading her multiple attempts to cut him off by opening new accounts. The messages became increasingly ominous. They indicated that he was surveilling her. Further, the opinion of the Court by Justice Kagan notes:

And most critically, a number expressed anger at C. W. and envisaged harm befalling her: “Fuck off permanently.” … “Staying in cyber life is going to kill you.” … “You’re not being good for human relations. Die.”

Ms. Whalen was justifiably disturbed by this conduct, with resulting anxiety, sleep disturbance, and impact on her personal and professional life.

Threats v. Manner

The state initially charged Counterman under two subsections of the stalking statute, one prohibiting threats and the other providing that

A person commits stalking if … the person knowingly: … (c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress.

The threats count was dismissed before trial, and the case was tried under subdivision (c) alone. As subdivision (c) unambiguously refers to the “manner” of communications, among other actions, and not threats, one might wonder why this is a “threats” case at all and not a “time, place, and manner” case. The true threats doctrine is an exception to the general rule that government cannot regulate the content of speech, while the standard for “time, place, and manner” regulations is more relaxed. For example, if someone rolls down the street with a “sound truck” blasting his message at ear-splitting volume, the state can punish that so long as the prohibition is based only on volume without regard to the content of the message.

Two amicus briefs in this case raised the question of whether this should be a “true threats” case at all. One was CJLF’s, in part II. The other was a group calling themselves “First Amendment Scholars”: Douek, Lakier, and Volokh. (Not to be confused with another brief by another group also calling themselves “First Amendment Scholars”: Chemerinsky, Citron, Dorf, Franks, Segall, and Tilley.)

A somewhat similar point is addressed in Justice Sotomayor’s concurring opinion at pages 3-5.

True-threats doctrine came up below only because of the lower courts’ doubtful assumption that petitioner could be prosecuted only if his actions fell under the true-threats exception. I do not think that is accurate, given the lessened First Amendment concerns at issue.

The opinion of Court, however, only makes a cursory reference to the issue. The Court notes in footnote 1 that the only evidence of conduct rather than speech was in the messages themselves. That is true, but the messages themselves do demonstrate conduct, i.e., surveillance. The prosecution appears to have assumed that stalking via communication must be shoehorned into the “true threats” exception for regulation of speech. The Colorado appellate court affirmed on that basis. With the content v. manner distinction presented only by amici, the Court proceeded to decide the issue as the parties and lower court had framed it, whether the speech in question was properly classified as a “true threat.”

The lack of discussion of this distinction is a potential problem. I expect that communication-only stalkers nationwide will now seek to defend themselves on the ground that their communications were not true threats, citing this case. The Supreme Court will eventually have to take this up again to fix the problem.

True Threats and Mental Element

On the question of the mental element required for the “true threats” exception, most of the debate consisted of discussion of other forms of “nonprotected speech,” i.e., speech that the government can prohibit and punish based on its content, and which kind is most analogous to threats.

At one end of the debate is the position taken by most of the federal courts of appeals and by the Colorado Supreme Court. Whether speech is a true threat is determined objectively, taking into account the context of the speech. No mental state of the defendant is required beyond knowledge of what he said.

This objective standard was adopted by the Supreme Court for “fighting words” in Chaplinsky v. New Hampshire in 1942. Chaplinsky is also relied on by Justice Barrett in dissent in this case, joined by Justice Thomas. The majority brushes off Chaplinsky in a footnote, apparently considering it an obsolete category. The category may well be obsolete. In the darkest days of World War II, “damned Fascist” were deemed words “likely to provoke the average person to retaliation.” It is doubtful whether any mere words exist today that would have that effect. Most people do not respond with violence to even the most vicious verbal insults. Even so, Chaplinsky is a precedent, and it is unseemly for the Court to so casually dismiss its own precedents when all other courts in the country are required to respect them.

A second example is obscenity. In Hamling v. United States (1974), the Supreme Court upheld a conviction for mailing obscene matter in a case where the judge instructed the jury that the defendants’ “belief as to the obscenity or non-obscenity of the material is irrelevant.” The Court declined to overrule a precedent in which the court held that when material determined to be obscene “was deposited in the mail by one who knew or had notice at the time of its contents, the offence is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails.”

The dissent relies on Hamling. The majority attempts to flip it around as holding the opposite and calls the dissent’s reading “revisionist.” That is backwards. Justice Rehnquist did include some ambiguous language about the defendant knowing the “character” of the materials, but when considered in light of the instruction upheld and the precedent reaffirmed, the ambiguity is resolved. Hamling required no more than knowledge of the contents, not knowledge that the contents were or might be considered obscene.

The majority places its primary reliance on the cases of defamation of public officials, beginning with the famous New York Times v. Sullivan (1964). In that case, the Court held a false and defamatory statement against a public official could not be the basis for civil liability unless the speaker knew it was false or acted with reckless disregard of whether it was true or false.

The First Amendment theory of Sullivan, adopted in the present case, is that the law must take into account the fact that the lines it draws are often not clear and in close cases cannot be predicted by the people who act or speak. Qualified immunity has a similar basis. A person wanting to criticize a public official who cannot tell if his statement would be legally classified as defamatory may refrain from the criticism, thus “self-censoring,” if the criticism was close to the line. Because criticism of public officials is at the core of the speech the First Amendment was designed to protect, liability must be denied in a buffer zone defined by the required mental state.

Today’s opinion is deficient, though, in that it does not identify any borderline but socially important speech analogous to the criticism of officials involved in Sullivan. What speech is there that is close to a “true threat” but not quite over the line that we need to protect? The majority opinion notes this difference in defending its recklessness standard from the criticism of Justice Sotomayor’s separate concurrence — that it does not protect enough borderline speech. But why does it need to protect any at all? What harm is there to society if people are chilled from making statements that border on threats?

The arguments in the briefs and in Justice Sotomayor’s concurrence consist largely of claims that a statement that was not a threat in the context in which it was made might be misinterpreted as a threat by someone who did not fully understand the context. But no new subjective mental state requirement is needed to deal with that situation. The original “true threats” case of Watts v. United States (1969) addressed that situation. An antiwar protester made a statement that, on its face, could have been considered a threat to assassinate President Johnson, but considering the context it was political hyperbole and not a “true threat.” But if a person in Watts’s situation feels chilled and self-censors not to say what he said, so what? Opposition to a war can be forcefully and effectively expressed in many other ways, as a great many people did at that time.

The “chill” argument that is the majority’s primary reason for imposing a recklessness mens rea requirement “falls flat,” to borrow Justice Kagan’s expression. Prosecution of actual threats will be made more difficult as the threatening speakers hide behind “I was only kidding” defenses.

Where does this leave society in terms of protecting the targets of stalking? It is best if statutes and prosecutions go forward on a basis that does not require characterizing the speech as a threat. Stalking involves conduct and manner of expressions, whether they be spoken, online, or even old-fashioned paper. In the Counterman case, the statute expressly refers to “manner,” and that is how these cases should be prosecuted.