In 2014, a Colorado singer-songwriter accepted a seemingly innocuous friend request on Facebook. This morning, nearly a decade later, the Supreme Court will hear a case about the fallout — and it might redefine what’s legal to say online.
Attorneys will present arguments today in Counterman v. Colorado, a closely watched case about the boundaries of unlawful “true threats.” The case’s petitioner, Billy Raymond Counterman, claims that he was convicted of stalking based on an overly broad definition of a threat. He argues that a series of Facebook messages weren’t intended to cause distress and shouldn’t be legally actionable. On the other side, the state of Colorado argues it should be sufficient for a reasonable person to find these messages threatening in the context they were made — whatever the intent behind them.
The facts of Counterman are frustratingly familiar to many people online. Counterman sent a friend request to the musician, identified in the documents as “C.W.,” then began sending an increasingly alarming series of messages. Over the course of two years, he suggested he was tracking C.W.’s movements — at one point asking, “Was that you in the white Jeep?” — and berated her for her “arrogance” and for supposedly talking to others about him. “You’re not being good for human relations. Die. Don’t need you,” he wrote at one point.
C.W. said the messages derailed her life and musical career. She blocked Counterman, but he continued to contact her. She filed for a restraining order and canceled appearances, taking his request that she “die” as a threat. A court agreed, saying that the context of the messages — including Counterman’s pursuit of her after she blocked him — made them clearly threatening. The Supreme Court dispute will address whether that context is sufficient or whether prosecutors needed to establish Counterman’s intent to threaten her.
“You’re not being good for human relations. Die. Don’t need you.”
This isn’t the first time the Supreme Court has considered the question. Counterman v. Colorado bears similarities to Elonis v. United States, a 2015 case that’s also about the limits of threats. In Elonis, a man posted violent revenge fantasies about killing his estranged wife (among other people) to Facebook. It was one of the first major cases to take on threats and social media, and the Supreme Court reversed his conviction for sending threats. But it didn’t take on the underlying question of what constituted a threat under the First Amendment — particularly in the unique circumstances created by social media.
Like Elonis, the Counterman case illustrates the dark side of casual online communication. It’s possible to make threatening statements in any medium, but the internet has massively amplified the power of harassers — particularly ones that aren’t engaging in undeniable physical stalking. “The internet has provided a particularly effective tool for complete strangers to gain previously unavailable access to their victims,” the Colorado reply brief says. It’s created a unique threat for people, especially (the brief notes) women, who find themselves catching the ire of total strangers. Stalkers are “frequently untethered from reality,” making their assessment of a threat potentially unreliable. And their behavior can make targets less likely to exercise their own speech rights.
The Supreme Court could determine that a true threat is defined by the context of a message and whether a reasonable person would feel threatened by it. “Regulating unwanted communications like these, repeatedly directed to an individual over social media, does not threaten to suppress valuable expression on matters of public concern,” William & Mary Law School professor Timothy Zick argued in The Atlantic last week. “Indeed, threatening communications chill public discussion and instill terror in their recipients. An objective standard recognizes this reality.”
But in part because of the internet’s ubiquity and its norms of communication, the case has broad implications that make many civil liberties advocates uneasy. The case has drawn supporting briefs from the American Civil Liberties Union, the Electronic Frontier Foundation, and the Reporters Committee for Freedom of the Press, among others. They argue that threats should require a level of intent — not rely on determining whether the message is “objectively” threatening.
“A vast amount of speech on political, social, and other issues occurs online, and is often abbreviated, idiosyncratic, decontextualized, and ambiguous,” says the ACLU in a brief it co-signed. “The foreseeable audience is broad, diverse, and likely to interpret the speech in myriad ways the speaker never intended” on social media. If intent doesn’t matter, “people who wish to broadcast messages on matters of public concern might find themselves staring down criminal prosecutions for unintended reactions to their speech that a jury later deems ‘reasonable.’”
The Supreme Court’s oral arguments can be heard live starting at 10AM.