New SCOTUS Decision Makes it Harder to Prosecute Online Stalking

New SCOTUS Decision Makes it Harder to Prosecute Online Stalking

If you receive abusive or threatening online messages from another person, how do you know when to prosecute? How do we, as a society, balance the First Amendment right to free speech with the need to protect social media users from real-life harm?

Those are questions the US Supreme Court considered in Counterman v. Colorado. The surprising 7-2 ruling, which made prosecuting online harassment more difficult, was welcomed by some sectors and harshly criticized by others. The SCOTUS decision, which limited the kinds of online communication that can be considered criminal, found that a lower court’s decision to convict and imprison a Colorado man for stalking was flawed.

Case Background: When Facebook Messages Turn Threatening

Between 2014 and 2016, Billy Raymond Counterman sent thousands of disturbing online messages to musician Coles Whalen. Even though Whalen blocked Counterman, he kept creating new profiles and sending more messages wishing or predicting Whalen’s death. Multiple messages implied that Counterman was tracking Whalen’s whereabouts.

In one record from court filings, Counterman wrote, “F**k off permanently.” He also wrote “I’ve tapped phone lines before. What do you fear?” and “You’re not being good for human relations. Die. Don’t need you.” 

In fear for her life, Whalen began to suffer anxiety and sleep deprivation. Eventually, she stopped performing, fearing Counterman would find her. Eventually, she obtained a protective order, and Counterman was charged with stalking under a Colorado law that prohibits “repeatedly making 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.” 

Even before his trial, Counterman sought to dismiss the charge, arguing that his messages were not true threats and constituted protected speech under the First Amendment. He maintained that due to mental illness, his messages weren’t intentionally threatening.  But the state trial court found his messages reached the level of true threats. A jury then found Counterman guilty, and he was sentenced to four-and-a-half years in prison, most of which he has served.

Counterman followed with an appeal, claiming the court was wrong to apply an objective standard for determining whether his messages constituted true threats. He said the court should instead adopt a “subjective intent” requirement, which required the state to show not that “a reasonable person” would suffer emotional distress, but that he was aware of the threatening nature of his communications. Nonetheless, the Colorado Court of Appeals upheld his conviction and the state supreme court declined to review it.

SCOTUS Turnaround: Redefining a ‘True Threat’

The US Supreme Court dissented with the Colorado Court of Appeals ruling. Divided 7-2, the decision was written by Justice Elena Kagan with dissenting opinions by Justices Clarence Thomas and Amy Coney Barrett. Kagan said prosecutors must show that a defendant who makes a threat is acting recklessly – knowing that others could regard their statement as threatening violence — for speech to be considered a “true threat” not covered by the First Amendment. 

This differs from the standard applied by the Colorado Court of Appeals, which requires that a “reasonable person” would understand the messages as threats. Interestingly, the SCOTUS ruling concedes that a threat is ultimately judged on what it conveys to the receiver, but it says the First Amendment protects some threats from liability due to the need to prove subjectivity. Counterman’s case will now be re-litigated in the lower courts, with the option to retry him.

Amy Coney Barrett’s opinion, which Thomas joined, points out that this puts a lot of power in the hands of the person making threats. Barret wrote: “A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her.”

Freer Speech or Hurting Victims: Responses to the Decision

Advocacy groups such as the ACLU and the Electronic Frontier foundation supported the decision. They argue that the reasonable standard could lead to the criminalization of harmless jokes, memes and posts.  

But those who work to support cybercrime victims say the decision hurts the innocent and will cause more people to retreat from online participation for fear of being stalked by those who will never be punished. Some tech platform moderation experts have also said the decision means platforms like Facebook have less incentive to moderate what happens on their sites, leaving victims more vulnerable.

For social media intelligence and threat monitoring, the Interfor team is here to help.