L-R: Supreme Court Justices Amy Coney Barrett, Clarence Thomas pose for a group picture of the Justices in Washington, DC on April 23, 2021 (Erin Schaff-Pool/Getty Images).

The Supreme Court handed down a fractured 7-2 opinion in favor of a convicted stalker Tuesday when it decided that even hundreds of “creepy” Facebook messages including one to a musician that said to “f— off permanently” are protected by the First Amendment.

Billy Raymond Counterman was convicted in Colorado after sending “true threats” via text message to musician Coles Whalen. In messages Whalen described in court documents as “weird” and “creepy,” Counterman told the singer that he had “physical sightings” of her in public and that he wanted her to die. As a result, Whalen said she suffered serious physical, psychological, and financial harm.

In his defense, Counterman argued that the statement he made via Facebook Messenger did not rise to the level of being “true threats,” and were therefore protected by the First Amendment as free speech. The trial court considered, as required by state law, whether a reasonable person would have interpreted Counterman’s messages as threats.

Counterman argued on appeal that the proper test was a subjective one that took into account whether Counterman actually intended to harm Whalen. The majority of justices agreed with him and adopted a subjective test in Tuesday’s ruling — albeit one with a relatively low standard.

Justice Elena Kagan penned the majority opinion. She wrote that in order for speech to rise to the level of a “true threat” that is unprotected by the First Amendment, a criminal defendant must have had “some subjective understanding of the threatening nature of his statements.” To satisfy that requirement, though, Kagan said a mental state of recklessness suffices. So long as prosecutors can show that a defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence, the state will not offend the Constitution.

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As part of the analysis, Kagan analogized the need for threats to have a subjective component to the landmark defamation case New York Times Co. v. Sullivan, which requires that a speaker act with at least “reckless disregard” for the truth or falsity of a statement to defame a public figure.

Four justices — Chief Justice Roberts and Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson — stood in lockstep with Kagan.



Law and Crime

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