The U.S. Supreme Court on Tuesday ruled in favor of a man who frequently threatened a singer online, noting that in order to convict, prosecutors have to prove the person making the threats is aware of the nature of their communications.

The court ruled 7-2 in favor of the defendant, Billy Raymond Counterman, who had been convicted in Colorado of stalking charges. Counterman’s conviction stemmed from the repeated messages he sent to a female musician, singer-songwriter Coles Whalen, including threatening statements such as “die” and “F*ck off permanently,” which caused her to fear for her safety.

The conviction was based on an objective evaluation to determine whether a reasonable person would perceive Counterman’s comments as “true threats,” which are not protected by the First Amendment. During proceedings before the high court, Counterman’s attorney argued that the focus of the test should instead be on the speaker’s intent, noting that Counterman did not intend to threaten Whalen.

Justice Elena Kagan, in authoring the ruling, concluded that although true threats of violence are not safeguarded by the First Amendment, states have the burden of demonstrating that a criminal defendant had “disregarded a substantial risk that his communications would be viewed as threatening violence.”

Forbes added:

The court ruled that for speech to be considered a “true threat,” there has to be some demonstration that the speaker “had some subjective understanding of his statements’ threatening nature,” but it only has to be shown that the speaker was reckless with their comments, rather than intending them to be harmful.

The court’s “recklessness standard “offers ‘enough ‘breathing space’ for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats,” Kagan wrote in the court’s opinion, though she acknowledged the compromise ruling means “something is lost on both sides: The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats. But in declining one of those two alternative paths, something more important is gained: Not ‘having it all’—because that is impossible—but having much of what is important on both sides of the scale.”


Justices Clarence Thomas and Amy Coney Barrett were the two dissenters.

Barrett noted that she would have kept the objective standard for “true threats” in a dissent joined by Thomas, adding that is currently the standard for every other form of speech that is not protected by the First Amendment. She argued that the court’s ruling “unjustifiably grants true threats preferential treatment” and “gives short shrift to how an objective test works in practice.”

The court’s decision resulted in the overturning of Counterman’s conviction and sending the case back to a lower court for reconsideration. Consequently, there is still a possibility of Counterman being convicted of stalking if found guilty under the newly established standard by the Supreme Court ruling.

Before the ruling, a number of advocacy groups supporting victims of crime and domestic abuse expressed concerns that a decision favoring Counterman could create significant challenges for stalking and abuse victims seeking protection orders and escaping their abusers. They argued in amicus briefs that imposing a subjective test would “jeopardize” victim protections and “unnecessarily compromise” orders of civil protection.

“The court saying that it must only be shown that a speaker acted recklessly may help to mitigate those impacts, however,” Forbes noted. “Victims’ advocacy groups said in their brief that if the court was going to side with Counterman, imposing a recklessness standard would be the best way to do it, saying that would apply in Counterman’s case because he messaged her with ‘reckless disregard of the fact’ that Whalen hadn’t responded to his messages and blocked him repeatedly.”

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