It was such a busy Summer that I never got a chance to write about the Supreme Court’s June decision in the cyberstalking case Counterman v. Colorado. The story caught my attention when legal scholar and president of Cyber Civil Rights Initiative Mary Anne Franks tweeted, “the Supreme Court has just decreed that stalking is free speech protected by the First Amendment if the stalker genuinely believes his actions are non-threatening. That is, the more deluded the stalker the more protected the stalking.”  The key facts as summarized in the opinion are as follows:
Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged violent harm befalling her. Counterman’s messages put C. W. in fear and upended her daily existence: C. W. stopped walking alone, declined social engagements, and canceled some of her performances. C. W. eventually contacted the authorities. The State charged Counterman under a Colorado statute making it unlawful to “[r]epeatedly . . . make any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.”
Read accounts of people who have been cyberstalked, and the stories are often harrowing. The content of the stalker’s communication doesn’t even have to be threatening, though it usually gets there. Just knowing that somebody (usually a man) has selected you (usually a woman) as a target for unwanted attention can be unnerving to the point that it can have life-altering consequences including general anxiety, fear of movement, fear of speech, job and opportunity loss, and even suicide. That can be true even if the stalker doesn’t take or induce any action outside cyberspace, though many incidents that begin online eventually become physical and violent contact.
To be clear, no member of the Court defended (nor do I believe would defend) Counterman’s conduct. The question addressed was what legal standard should have been applied in the enforcement of the Colorado law to determine the threshold where the defendant’s speech is no longer protected by the First Amendment. At trial, the state court applied an “objective” standard to determine whether the content of the speech at issue would be perceived by a reasonable observer as a “true threat,” a term of art that encompasses one category of unprotected speech—threats of violence.
The Supreme Court majority held that Colorado erred by not applying a “subjective” standard, under which it must be shown that the defendant intended to threaten plaintiff or had reason to know that the speech at issue was threatening; and the Court further held that it would be sufficient to show that a defendant recklessly disregarded the threatening nature of his communications. Hence, Dr. Franks’s observation that the more unreasonable the cyberstalker the more likely his online harassment will be protected speech. And how many cyberstalkers are reasonable?
Sound Dissent by Justice Barrett
With the acknowledgement that I do not have a deep knowledge of the relevant case law, Justice Barrett’s dissent (joined by Thomas) reads as the better argument—both as law and common sense. The dissent argues that the majority singled out “true threats” in this case for preferential treatment to fashion a “Goldilocks decision” (i.e., inventing a middle ground that is neither necessary nor consistent with precedent). “True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard,” the dissent states.
The extent to which the Court departs from precedent is difficult to comment upon without studying all the underlying First Amendment case law, but Justice Barrett’s focus on “context” rings soundly as a rationale that an objective standard can maintain the balance between protected and unprotected speech. “…the statement must be deemed threatening by a reasonable listener who is familiar with the ‘entire factual context’ in which the statement occurs [citation omitted]. This inquiry captures (among other things) the speaker’s tone, the audience, the medium for the communication…” Barrett writes.
Indeed, any target of online stalking knows instinctively that words as seemingly unthreatening as You look lovely today may indeed be threatening if, for example, the statement comes from a stranger or an angry, obsessive ex-husband or boyfriend. Weighing the legality of speech without context—not just online, but anywhere—is a half-baked analysis. For instance, “Vote for me or you won’t have a country anymore” delivered on the stump is protected hyperbole, while “Fight like hell, or you won’t have a country anymore” delivered to an angry mob ready to march to the Capitol is considered by many reasonable observers to be incitement.
Justice Barrett highlights the Colorado cyberstalking statute (and notes that other states have similar laws) as an example of a contextual, objective analysis in which juries are instructed to weigh the defendant’s communications in a five-factor test to thoroughly understand the nature of the speech. “Each consideration helps weed out protected speech from true threats,” she writes, and again, this strikes me as the more rational approach to address the alleged crime at issue.
Further, the dissent argues that the majority leans heavily and improperly on the 1964 case New York Times v. Sullivan. There, the Court held that it is necessary to prove that a defendant showed reckless disregard for the known falsity of a statement in order for a public figure to obtain damages relief for libel or defamation. But citing subsequent case law from 1974 and 1985, Justice Barrett argues that Sullivan applies to public parties while, “A private person need only satisfy an objective standard to recover actual damages for defamation. And if the defamatory speech does not involve a matter of public concern, she may recover punitive damages with the same showing.” [Citations omitted]
Assuming the dissent is correct about the majority’s inapt reliance on Sullivan in this case, the public/private distinction is significant because a typical cyberstalking incident involves ordinary citizens rather than public figures—let alone “matters of public concern.” If someone tweets at Sen. Tuberville and calls him a sniveling, treasonous, ignorant weasel who should have been aborted, that is paradigmatically protected speech. Elected officials volunteer for public scorn as a bedrock principle of the First Amendment, and it would be an offense to two of the amendment’s freedoms if it were sufficient to find some cohort willing to call that tweet a “true threat.” Thus, evidence of the speaker’s intent and ability to cause violence must be present before his speech may be considered unprotected.
By contrast, the cyberstalker who tells his target that he wishes she were dead or writes that her death is imminent or that he hopes she gets raped, etc. may not express a “true threat” by words alone, but in context, the messages can have the same effect as a “true threat.” Even facially innocuous communication can be used to make a private individual feel threatened, especially when she has no idea who she’s dealing with, or what his intent might be.
By the time the target of a cyberstalker turns to law enforcement for relief, she has usually suffered substantial harassment, fear for her safety, and some form of irreparable damage to her liberty and/or financial interests. In Counterman, the Court compounds these injuries by elevating the standard for punishing an alleged cyberstalker to one in which a jury must read the mind of the defendant to find that he both understood and recklessly disregarded the threatening nature of his communication. This sets the bar higher than necessary in cases where the speech at issue is of no public interest other than, in most cases, making it stop.
The Tech-Utopian Concept of the Speech Right Lives in this Case
Unsurprisingly, the Electronic Frontier Foundation filed an amicus brief for the petitioner in Counterman stating, “This Court should make clear that the definition of a true threat necessarily includes a subjective speaker’s intent to threaten.” True to form, the EFF inflated its brief with praise for the scope, scale, and cultural significance of social media; and it cites examples of violent terms or rhetoric, which may be interpreted as threatening but may still be protected. Notably, no variant of the word stalking appears in the EFF’s brief.
All that general discussion about the value of social media as an alleged free speech machine may be true in certain contexts, but it should be seen as irrelevant in regard to cyberstalking. Because here’s where the “digital rights” organizations err, and where the Court has now made matters worse: cyberstalking is action more than it is speech. It may take the form of words and/or images, but the ongoing contact itself is intended to cause suffering, and very often, it succeeds in doing just that. As Dr. Franks put it, quoted in Reuters shortly after the decision:
It is deeply disappointing that the Supreme Court has chosen not only to allow stalkers to act with impunity, but to do so on the basis that stalking is free speech protected by the First Amendment. In doing so, they have sentenced victims of stalking to potentially lifelong sentences of terror, as well as increasing their risk of being killed by their stalkers.
 Dr. Franks also offered some sharp comments about the joking around at oral arguments, reflecting insensitivity to the dangers and traumas experienced by targets of cyberstalking. https://twitter.com/ma_franks/status/1648724142198226946
 (1) the statement’s role in a broader exchange, if any, including surrounding events; (2) the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features; (3) the manner in which the statement was conveyed (e.g., anonymously or not, privately or publicly); (4) the relationship between the speaker and recipient(s); and (5) the subjective reaction of the statement’s intended or foreseeable recipient(s).
 This is a reference to Sen. Tuberville’s holding up military promotions to protest the DOD’s healthcare policy vis-à-vis abortion.
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