Supreme Court’s ruling on online harassment outrages victims, advocates
On Tuesday, I noted the danger that the Supreme Court’s opinion in Counterman v. Colorado might be interpreted to require that speech must be classifiable as a “true threat” in all stalking cases before a prosecution can go forward. Taylor Lorenz has this article in the WaPo with the above title reporting that the effects are being felt already. See below.
I can understand how the Court went forward with the threats analysis in light of the fact that that was how the decision being reviewed justified the prosecution, and that was how both parties presented it. The Court does not normally rule on issues raised only by amici curiae, although it does occasionally.
But there is no excuse for not stating explicitly that the Court was not holding or implying that all stalking cases based solely on communications must pass muster as “true threats” rather than the “time, place, or manner” doctrine. That question should have been expressly left for another day.
The WaPo article notes that within minutes of the ruling, a target of online harassment received a message from one of the tormentors:
“SCOTUS just ruled that our conversations aren’t harassment as I’ve never threatened you,” read one message [Patrick] Tomlinson shared with The Post. “It’s just two friends enjoying each other’s company.”
Tomlinson was outraged. “It’s beyond irresponsible,” Tomlinson said of the court’s decision. “It’s a catastrophic ruling for victims of online harassment.”
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So…if I had a stalker who was threatening me with clear language of bodily harm, they couldn’t be held accountable because THEIR speech is protected?
So…if I had a stalker and I shot them, with a legally obtained gun, when confronted by them, then I would be thrown in jail for protecting myself?
Time to remove the SCOTUS in DC and start from scratch! These justices are protecting Don the Con and his online threats of violence.
If the prosecution of a stalker is based on the threatening content of his language, the Counterman decision says that the prosecution must additionally prove that he intended the language to be a threat or acted with reckless disregard of whether it would be taken as a threat. If he used “clear language of bodily harm” that would probably not be a large burden for the prosecution.
The use of deadly force in self-defense by a private citizen is a matter of state law. The standard varies by state, but generally it involves a reasonable fear of imminent bodily harm. It would depend on the circumstances of the confrontation.
Although I disagree with the Counterman decision, overall the present Supreme Court is as favorable to the victims of crime and unfavorable to the perpetrators as it has been for as long as I can remember (and that’s a long time).
The hypothesis that a decision written by Justice Kagan and joined by Justice Jackson is intended to protect Donald Trump does not seem plausible to me. The fact that Justice Sotomayor’s position would go even farther in protecting people who make borderline threats further diminishes the probability. See this post for the lineup.