{"id":8894,"date":"2023-04-21T14:15:34","date_gmt":"2023-04-21T21:15:34","guid":{"rendered":"https:\/\/www.crimeandconsequences.blog\/?p=8894"},"modified":"2023-04-21T14:15:34","modified_gmt":"2023-04-21T21:15:34","slug":"the-true-threats-doctrine","status":"publish","type":"post","link":"https:\/\/www.crimeandconsequences.blog\/?p=8894","title":{"rendered":"The “True Threats” Doctrine"},"content":{"rendered":"

On Wednesday the United States Supreme Court heard oral argument in Counterman v. Colorado<\/em>, No. 22-138 (transcript here<\/a>, audio here<\/a>).<\/p>\n

The issue in this case involves how courts should determine what constitutes a “true threat.”\u00a0 True threats are not protected by the First Amendment.\u00a0 The question before the Court is whether a state may define speech to be a “true threat” if it would be regarded by a reasonable person as a true threat, or whether the First Amendment requires a state to prove beyond a reasonable doubt that the speaker subjectively intended the communication to be a threat.<\/p>\n

In this case, Billy Raymond Counterman, was convicted of stalking and was sentenced to 4.5 years in prison for sending thousands of private Facebook messages to a local singer\/songwriter named C.W. C.W. found the private messages to be “weird” and “creepy” and did not respond to any of them. She blocked Counterman from her Facebook accounts, but he created new accounts and continued to message her. As time went on without response from C.W., Counterman’s messages became more angry and alarming, causing C.W. to become extremely fearful and scared. Counterman also alluded to making physical sightings of C.W. in public.<\/p>\n

Because C.W. was worried that Counterman would show up at her scheduled concerts, she cancelled several shows and obtained a protective order against him. C.W. also discovered that Counterman was on probation for two prior threat convictions. Counterman was arrested and charged with stalking under Colorado Revised Statute 18-3-602(1)(c). Under that statute, the state was required to prove beyond a reasonable doubt that Counterman “knowingly” followed, approached, contacted, placed under surveillance, or made any form of communication with C.W. in a manner that would cause a reasonable person to suffer severe emotional distress and did cause C.W. to suffer from severe emotional distress. Counterman argued that because he did not subjectively (actually) intend to threaten C.W., the statute was unconstitutional as applied to his messages because they were protected under the First Amendment. The Colorado Court of Appeals disagreed and held that his messages were unprotected “true threats.”<\/p>\n

It is CJLF’s position that the “true threats” doctrine, like other historically unprotected areas of speech, does not depend on what the speaker’s inner subjective purpose was in making the communication.\u00a0 Evaluating a speaker’s mental state under an objective knowing standard is all that is constitutionally required.\u00a0 This is especially true in the stalking context.\u00a0 Requiring proof of a stalker’s subjective intent would permit stalkers to escape criminal liability by simply claiming they were “just kidding” or “expressing feelings.”<\/p>\n

At oral argument, when Counterman’s attorney was asked to clarify what rule he was asking the Court to adopt, he responded that it “should be knowledge of the thing that makes the conduct wrongful . . .knowledge that the words you use are going to cause fear. . . [Under the] Colorado statute . . . it would be knowledge that it would cause a reasonable person to suffer emotional distress.”\u00a0 Colorado’s attorney, on the other hand, argued that an objective, context driven inquiry should be the standard because it better protects victims, and further “protects statements that contribute to the marketplace of ideas.”\u00a0 Colorado’s attorney further stated that the subjective standard proposed by Counterman “would thwart the goals of the First Amendment, enabling more harm and leading to less valuable discourse.”<\/p>\n

Several of the justices were concerned by the fact that Counterman was not allowed to introduce any evidence of his actual intent.\u00a0 Another concern of the justices regarding a pure objective standard is the increased “hypersensivity” of many people in today’s society, and how are courts to judge who is a “reasonable person” in these types of situations.\u00a0 Justice Thomas stated that this heightened sensitivity causes different people to “feel threatened in different ways,\u201d and trying to nail down this “reasonable person” standard would be difficult.<\/p>\n

The U.S. Government was represented at oral argument by Deputy Solicitor General Eric Feigin, who conveyed to the justices just how problematic it would be for his office to prosecute threat crimes under the subjective standard being proposed by Counterman because they would be required to “wait a lot longer for the objective evidence to build up” before they could arrest the person making threats and file charges.<\/p>\n

It is no doubt true that those who stalk cannot be pigeonholed into one particular type of person.\u00a0 Stalkers may be driven by anger\/hostility, control\/power, intimidation, revenge, jealously, delusions, and\/or obsession.\u00a0 A stalker’s behavior towards and interaction with his or her victims is not a one-time innocuous encounter, but rather a continuous crime measured in terms of months or even years.\u00a0 Even though a stalker’s behavior, motivation, profile, and pursuit patterns vary greatly from one to another, the one constant that remains the same throughout every situation is the profound effect of the stalker’s persistent, troubling course of conduct upon his or her victims.\u00a0 A constitutionally mandated subjective intent requirement would severely limit the ability of the States to protect stalking victims.<\/p>\n

Based on oral argument, it is truly hard to tell how the justices will decide this case. A decision will be released by late June or early July.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

On Wednesday the United States Supreme Court heard oral argument in Counterman v. Colorado, No. 22-138 (transcript here, audio here). The issue in this case involves how courts should determine what constitutes a “true threat.”\u00a0 True threats are not protected by the First Amendment.\u00a0 The question before the Court is whether a state may define speech to be a “true threat” if it would be regarded by a reasonable person as a true threat, or whether the First Amendment requires a state to prove beyond a reasonable doubt that the speaker subjectively intended the communication to be a threat. In this case, Billy Raymond Counterman, was convicted of stalking and was sentenced to 4.5 years in prison for sending thousands of private Facebook messages to a local singer\/songwriter named C.W. C.W. found the private messages to be “weird” and “creepy” and did not respond to any of them. She blocked Counterman from her Facebook accounts, but he created new accounts and continued to message her. As time went on without response from C.W., Counterman’s messages became more angry and alarming, causing C.W. to become extremely fearful and scared. Counterman also alluded to making physical sightings of C.W. in public.<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"link","meta":{"footnotes":""},"categories":[6,11,21,33,56],"tags":[],"class_list":["post-8894","post","type-post","status-publish","format-link","hentry","category-cases","category-constitution","category-first-amendment","category-mental-state","category-u-s-supreme-court","post_format-post-format-link"],"yoast_head":"\nThe "True Threats" Doctrine - Crime & Consequences<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.crimeandconsequences.blog\/?p=8894\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The "True Threats" Doctrine - Crime & Consequences\" \/>\n<meta property=\"og:description\" content=\"On Wednesday the United States Supreme Court heard oral argument in Counterman v. Colorado, No. 22-138 (transcript here, audio here). The issue in this case involves how courts should determine what constitutes a “true threat.”\u00a0 True threats are not protected by the First Amendment.\u00a0 The question before the Court is whether a state may define speech to be a “true threat” if it would be regarded by a reasonable person as a true threat, or whether the First Amendment requires a state to prove beyond a reasonable doubt that the speaker subjectively intended the communication to be a threat. In this case, Billy Raymond Counterman, was convicted of stalking and was sentenced to 4.5 years in prison for sending thousands of private Facebook messages to a local singer\/songwriter named C.W. C.W. found the private messages to be “weird” and “creepy” and did not respond to any of them. She blocked Counterman from her Facebook accounts, but he created new accounts and continued to message her. 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