Supreme Court grapples with what constitutes a 'true threat' on social media

20 February 2023

In April, the U.S. Supreme Court will hear oral arguments in the case Billy Raymond Counterman v. The People of the State of Colorado. At issue is what constitutes a legitimate criminal threat on social media — and therefore, is not protected by the U.S. Constitution’s 1st Amendment.

In 2016, Counterman was sentenced to four and one-half years in prison after being convicted of stalking Coles Whalen, a singer/songwriter, and making threats against him over a six-year period. The prosecution and conviction has been upheld as constitutional by the Colorado Court of Appeals but has made its way to the U.S. Supreme Court, and it remains be seen whether or not the High Court will agree or disagree with earlier rulings.

Counterman’s ally in the case is the Cato Institute, a libertarian think tank. Cato has said of the case, "As the internet enhances our ability to communicate and express our views, it also enhances the government’s ability to police our communication and expression. Affirming that the 1st Amendment’s protections apply fully to online expression is an independent reason to take up this case."

Cato’s legal team, journalist Kyle Wagner reported for the Denver-based website Westword in late January, acknowledges that Counterman sent "admittedly abrasive online messages" but maintains that they were not true threats.

Journalist Adam Liptak, in an article published by the New York Times on February 20, notes that in a 2014 case, the U.S. Supreme Court grappled with what does and doesn’t constitute an actual threat but was vague in its ruling. In that case, Liptak recalls, the High Court’s majority opinion "overturned the conviction of an estranged husband, (Anthony Elonis), who had harassed his wife with ugly Facebook posts in the form of rap lyrics" but "ducked the 1st Amendment question."

Now, in Billy Raymond Counterman v. The People of the State of Colorado, the High Court is revisiting that question. Liptak points out that in 2017, Justice Sonia Sotomayor described the Elonis ruling as vague and wrote that the Court needs to "decide precisely what level of intent suffices under the First Amendment — a question we avoided two terms ago in Elonis."

In Elonis, then-Justice Anthony Kennedy — a right-wing Ronald Reagan appointee with libertarian views — argued, "I'm not sure that the Court did either the law or the English language much of a good service when it said 'true threat.' It could mean so many things."

Yet the Court will once again address the "true threat" question when, according to SCOTUSblog, it hears Counterman arguments on April 19.

SCOTUSBLOG describes the issues the Court is weighing in Counterman as "whether, to establish that a statement is a 'true threat' unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective 'reasonable person' would regard the statement as a threat of violence."

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