U.S. Supreme Court Makes It More Difficult to Convict Someone of Making a Threat

The United States Supreme Court ruled Tuesday to make it more difficult to convict a person of making violent threats, including against elected officials or the president. 

The Biden administration had warned social media and the internet has expanded the types and number of threats in recent years, including online harassment, stalking, and intimidation. They also warned the case could affect the ability to prosecute threats against public officials, which have increased in recent years. 

The highest court ruled in a case involving a man sentenced to over four years in prison in Colorado for sending threatening messages on Facebook. The man’s attorneys had argued he suffers from mental illness and never intended his messages to be threatening. 

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The court’s question was if prosecutors must show if a person being prosecuted for making threats knew their behavior was threatening or if prosecutors only have to prove that a reasonable person would see it as threatening. 

Justice Elena Kagan wrote for the majority of the court that prosecutors must show that “the defendant had some subjective understanding of the threatening nature of his statements.”

“The State must show that the defendant consciously disregarded a substantial risk his communications would be viewed as threatening violence,” said Kagan. 

Amy Coney Barrett and Clarence Thomas, two conservative justices, dissented, while seven justices agreed with the outcome.

The Biden administration had been amongst those who argued for the lower “reasonable person” standard.

“Threats of violence against public officials, in particular, have proliferated in recent years, including threats against Members of Congress, judges, local officials, and election workers,” noted the Biden administration, and said the case could affect prosecutions in those cases.

All kinds of speech are generally protected by the free speech clause in the Constitution’s First Amendment, but so-called “true threats” are an exception.

The specific case in front of the justices involved Billy Counterman. He had contacted a musician through Facebook in 2010 to ask her if she would perform at a benefit concert he was organizing. Coles Whalen, the woman contacted, responded, but nothing ever came of it. 

Whalen forgot about the exchange; however, four years later, Counterman began sending her Facebook messages again. Ultimately, he sent hundreds of messages that were delusional and rambling and others that were memes and quotes. Whalen never responded and blocked Counterman several times. However, he would just create new accounts and continue sending messages. 

Counterman believed Whalen was responding through other Facebook pages and websites. Whalen said she became concerned after Counterman’s messages — including “Was that you in the white Jeep?” and “You’re not being good for human relations. Die. Don’t need you.” — suggested he was following her in person. Eventually, Counterman’s messages were reported to law enforcement, and he was arrested. He was convicted and lost on appeal. 

Ruling sends the case back to the lower courts 

The justices’ ruling sends his case back to lower courts for another look and is a victory for Counterman. In a statement, his lawyer John Elwood said they are “gratified that the Supreme Court agreed with Billy Counterman that the First Amendment requires proof of mental state before it can imprison a person for statements that are perceived as threatening.”

Phil Weiser, Colorado Attorney General, whose office prosecuted Counterman, said in a statement that the decision will make it “more difficult to stop stalkers from tormenting their victims.”

The case is Counterman v. Colorado, 22-138.