FVALUE REGULATION, the American Supreme Court wrote in 1937, “the matrix, the necessary condition of almost all other forms of freedom”. Very few forms of speech exist outside that sanctuary. Only language that is obscene, false or misleading in a commercial context, or that is defamatory or incites or incites violence, is not protected by the broad umbrella of the First Amendment’s guarantee of free speech. The Supreme Court over decades has gradually clarified the boundaries of these categories. But he never offered a detailed account of how to determine when a threatening expression crosses the line from defensive to plausible. A major unresolved issue involves intent: Is a statement a “real threat” only if the speaker intends it to be a threat? Or can a statement be dangerous in the eyes of a reasonable listener even if the speaker never intended it that way?
The case will come before nine judges on April 19 Counterman vs. Colorado. The case asks if the strange messages Billy Raymond Counterman sent to Coles Whalen, a singer in Denver, are protected speech. If Mr. Counterman pleads guilty, his four-and-a-half-year prison sentence for violating Colorado’s anti-stalking law will be overturned. But the decision, expected by the end of June, will have broader implications everywhere in America on the scope of government authority to protect individuals from harassment and other harm.
As lawyers go, Mr. Counterman is not particularly sympathetic. Colorado’s brief to the judges describes the “years of unwanted messages” he sent to the musician on Facebook. Some of her misses were “concerned” (“I’m going to the store, would you like anything?”) Others were more ominous (“Were you in the white Jeep?”, ” I’ve tapped phone lines before. What are you afraid of?”). And a few were aggressive: “Fuck off forever”, “Die, don’t need you.” The recipient of these messages did not respond and blocked Mr. Counterman again, but continued to block him from new accounts, under different names. The impact on Ms. Whalen was profound: “her -anxiety, she had trouble sleeping and was always looking over her shoulder”. She also canceled some of her shows.
But Mr Counterman’s lawyer, John Elwood, says the messages were “at best, heated but not dangerous”. He admitted that they harmed the life and livelihood of the musician, but he argues that his client’s mental illness made him unaware that he was a danger. The conviction, Mr. Elwood argues, is therefore “constitutionally invalid”: American judges have always required strong proof that a speaker intended his speech to be a threat to criminal prosecution. It indicates an example: in People v. Croswell, case from 1804, the Supreme Court upheld the conviction of a man for criticizing Thomas Jefferson in an article. But the main idea was that “[t]there can be no crime here without an evil mind.”
Civil liberties groups – including the American Civil Liberties Union (ACLU), the Cato Institute and the Foundation for Individual Rights and Expression (FEAR) – rallied to support Mr. Counterman and placed friend of the court briefs on his side. The ACLU worry that anti-stalking laws like Colorado’s could penalize speech simply because it is “extremely or sincerely expressed” and lead to self-censorship. FEAR citing a University of Utah student who was arrested by university law enforcement officers and was under disciplinary investigation for her hyperbolic statement that she “detonat[e] the nuclear reactor on campus” if the football team lost its upcoming game.
But some notable scholars take Colorado’s side. One brief, co-authored by Erwin Chemerinsky, dean of the law school at the University of California at Berkeley, says the First Amendment does not protect the right to “engage in a prolonged campaign, who scares another person, who hunts. He argues that people like Mr Counterman who are oblivious to the harm they cause are “more, not less, dangerous”. Mr. Chemerinsky supports the Colorado state approach of considering the context of a statement to determine whether a fair observer would view it as a joke (such as the student’s comment on a nuclear reactor). or a real risk of harm.
The Court is best guided by its precedents. In 1969, in United States v. Watts, the court decided that an activist who said “The first person I want to get in my sight is LBJ.” delivers political hyperbole, not a “real threat” to President Lyndon Baynes Johnson. In the last case in 2015 the court refused to clarify what kind of intention indicates such a risk in Elonis v United States, another case featuring a man using Facebook to say nasty things. It seems that the question will not go in Accountant. ■
