the supreme court ruled on tuesday that the First Amendment places limits on laws that make it a crime to make threats on the Internet, requiring prosecutors to prove that defendants have acted recklessly in causing emotional harm.
Writing for five judges in the 7-2 decision, Judge Elena Kagan took a middle course.
“The state must show that the defendant knowingly ignored a substantial risk that his communications would be viewed as threats of violence,” he wrote. “The state does not need to prove any more demanding form of subjective intent to threaten another.”
Judge Kagan acknowledged that “genuine threats,” such as defamation, incitement, obscenity, and fighting words, are not protected by the First Amendment. But he said the risk of freezing protected speech justified placing an additional burden on prosecutors.
“The speaker’s fear of mistaking whether a statement is a threat; his fear that the legal system will err in that trial; his fear, in any case, of incurring legal costs, all of that can lead him to swallow words that are not actually true threats, ”he wrote.
The case arose from the fixation of a Colorado man, Billy Counterman, with a singer-songwriter identified in court documents as CW. He sent her many messages on Facebook, opening new accounts when she blocked him.
“You are not being good for human relations,” one message read. “Die. I don’t need you.
Another asked, “Was that you in the white Jeep?”
Judge Kagan wrote that “the messages struck fear into The CW and disrupted her daily existence,” adding: “She stopped walking alone, refused social engagements and canceled some of her performances, even though doing so caused her financial problems.”
Mr. Counterman was prosecuted under a colored law that made it an offense to send repeated communications that would cause a reasonable person to suffer serious emotional distress and caused such harm. He was convicted and sentenced to four and a half years in prison.
Lawyers for Mr. Counterman argued that the law violated the First Amendment because it did not require proof that it was intended to cause distress.
“The notion that one could commit a ‘crime of expression’ accidentally It’s chilling,” they wrote in a brief from the Supreme Court. “Imprisoning a person for negligently misjudging how others would interpret the speaker’s words would erode the respite that safeguards the free exchange of ideas.”
The state’s lawyers responded that it was enough to look at the words in question, how they were transmitted and the response they provoked. The subjective intention of the speaker, they said, does not matter.
Justice Kagan addressed the question by examining how the Supreme Court had dealt with other categories of unprotected speech, particularly defamation. Noting that public figures must show at least a reckless disregard for the truth, which means subjective awareness of probable falsehood, to prevail in defamation cases, he said something similar was required in prosecutions for genuine threats.
In the context of threats, he wrote, citing earlier opinion, recklessness “means that a speaker is aware that others might view his statements as threats of violence and says them anyway.”
Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Brett M. Kavanaugh, and Ketanji Brown Jackson joined Justice Kagan’s majority opinion.
Judge Sonia Sotomayor, joined for the most part by Judge Neil M. Gorsuch, agreed with Judge Kagan’s final result, but for different reasons. She said that she would look at the case as if it involved harassment rather than threats.
Judge Clarence Thomas issued a brief dissent that repeated his call to reconsider New York Times v. Sullivan, the landmark 1964 libel decision that interpreted the First Amendment to make it more difficult for public officials to prevail in libel suits.
“It is therefore unfortunate,” he wrote, “that most choose not only to prominently and uncritically invoke the New York Times, but also to extend its policy-driven flawed analysis of the First Amendment to real threats, a separate area of the jurisprudence of this court. .”
In a second dissent, Justice Amy Coney Barrett, joined by Justice Thomas, wrote that an objective standard was sufficient in actual threat prosecutions.
“The bottom line is this,” he wrote, quoting lines from Judge Kagan’s opinion. “Counterman communicated actual threats that ‘everyone agrees are outside the bounds of First Amendment protection.’ He knew what the words meant. These threats made the victim fear for her life and ‘disrupted her daily existence’. Nonetheless, the court concludes that Counterman can prevail in a First Amendment defense. Nothing in the Constitution requires that result.
The Supreme Court considered a similar case in 2014, involving a Pennsylvania man who was prosecuted for making threats on Facebook in the form of rap lyrics after his wife left him.
Chief Justice John G. Roberts Jr., writing for the majority when the case was decided in 2015, said prosecutors must do more than show that reasonable people would view the statements as threats. The defendant’s state of mind matters, the chief justice wrote, though he declined to say where the legal line is drawn.
Judge Barrett suggested that Judge Kagan’s position in the new case, Counterman v. Colorado, No. 22-138, was unprincipled.
“The reality,” he wrote, “is that recklessness is not based on law, but on a judgment by Goldilocks: recklessness is not too much, not too little, but ‘perfect’.”
Responding in a footnote, Judge Kagan said she was not offended. “In law, as in life,” she wrote, “there are worse things than being ‘just right’.”