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Supreme Court Agrees to Hear Case That Could Give the Government a Green Light to Chill Political Speech on Social Media

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WASHINGTON, D.C. — The U.S. Supreme Court has agreed to hear a case challenging part of Colorado’s stalking law to determine what constitutes a true threat. The Court’s decision could affect whether such a law could be used to criminalize non-threatening political speech that may be merely annoying, embarrassing, or unpleasant.

In an amicus brief filed in Counterman v. Colorado, The Rutherford Institute warned against the ramifications of allowing the government to use overly broad stalking laws to treat expressive activities on social media as true threats, which are not protected by the First Amendment, without having to prove that the messages are both reasonably understood and intended to threaten an illegal act.

“The government must not be given the power to criminalize speech it deems distasteful or annoying,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Nowhere in the First Amendment does it permit the government to limit speech in order to avoid causing offense or hurting someone’s feelings, protect government officials from criticism, discourage bullying, penalize hateful ideas, combat prejudice and intolerance, and the like.”

Under Colorado’s stalking law, a person can be charged with stalking for repeatedly contacting, surveilling or communicating with an individual in such a way that a reasonable person would feel serious emotional distress. In June 2020, the Colorado Supreme Court established new criteria for distinguishing between threatening and protected speech in a social media age. The Court recognized that “social media…magnify the potential for an innocent speaker’s words to be misunderstood” and that “a listener’s subjective reaction, without more, should not be dispositive of whether a statement is a true threat,” which the Court defined as “a serious expression of intent to commit an act of unlawful violence.” The ruling stated that when an alleged threat is communicated online, courts should consider both the words and the context, factoring in the statement’s role in a broader exchange. However, the Court declined to consider whether a speaker must have a subjective intent to actually threaten the recipient.

In 2016, Billy Counterman was charged with stalking after he sent Facebook messages to a Denver musician’s private and public accounts over the course of two years. Although none of the messages explicitly threatened any illegal act or harm, the musician interpreted the messages as threats and sought a protective order against Counterman. Counterman was subsequently found guilty of stalking and sentenced to 4.5 years in prison. On appeal, Counterman argued that the Colorado law is overbroad because it does not require speech to be a true threat in order to be criminally punished. However, the Colorado Court of Appeals ruled against Counterman, with the judges analyzing his messages for hidden meanings or subtext. Although the U.S. Supreme Court has ruled that “true threats” are not protected by the First Amendment, there is growing dissonance about how to determine what constitutes a true threat on social media. In weighing in on the case, Rutherford Institute attorneys warn that while protecting people from stalking is certainly a valid concern and may be warranted in this particular case, such a broad-reaching law could empower the government to misinterpret any speaker’s intent and meaning in order to criminalize legitimate political speech that is critical of government officials and representatives.

Case History

October 21, 2022 • Rutherford Institute Warns Against Giving the Government a Green Light to Chill Political Speech on Social Media

Amicus brief: Counterman v. Colorado

Court of Appeals Opinion: Counterman v. Colorado

Article posted with permission from John Whitehead

John Whitehead

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He is the author of A Government of Wolves: The Emerging American Police State and The Change Manifesto.
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