Defining True Threats

 

Defining True Threats: A Reaffirmation of Free Speech Protections

First Amendment researcher Darren Chaker reviews the Supreme Court's recent decision in Counterman v. Colorado, No. 22-138 (U.S. June 27, 2023) and application to stalking laws and how defining true threats is now held to a higher standard than before, thus saving many people from being jailed for speech which would not be criminal speech since being further defined in Counterman.  Of course, do not rely on anything here as legal advice, as advice from an attorney who is aware of your specific issue should be relied on.

New York Times v. Sullivan Determining Criminal Speech

Brief writer Darren Chaker finds a hopeful light on the enduring legacy of New York Times v. Sullivan, 376 U.S. 254 (1964), particularly concerning the First Amendment and the concept of "true threats."

In Counterman, the Court's analysis upheld the fundamental principles of Sullivan, significantly impacting the landscape of free speech and media reporting. Despite previous doubts cast by Justices Thomas and Gorsuch regarding the "actual malice" standard established by Sullivan, the decision indicates that an outright reversal of this landmark ruling is unlikely. This development is crucial for media, news organizations, and individuals engaged in the dissemination of speech, offering a sigh of relief amid ongoing challenges to Sullivan's actual-malice standard.

Defining True Threats: Understanding Counterman's Background

The Supreme Court needed to address the proper mental state a person must have to define true threats. In Counterman addressed the mental state necessary for criminal liability under "true threats," a category of speech not protected by the First Amendment. The case stemmed from the conviction of Billy Counterman for sending threatening Facebook messages, judged under a Colorado statute based on how a "reasonable person" would perceive such communications. The Supreme Court's decision to vacate and remand the case, advocating for a recklessness standard in prosecuting true threats, underscores the importance of a subjective understanding of the speaker's intent.

Brief writer Darren Chaker notes the Supreme Court's decision in Counterman v. Colorado, No. 22-138 (U.S. June 27, 2023), marks a significant moment in defining "true threats" under the First Amendment. By setting a new standard for evaluating what constitutes a true threat, this ruling not only clarifies the legal landscape but also reshapes the contours of free speech in the United States, and of course state statutes criminalizing speech online through CyberStalking laws.

History of Defining True Threats

Historically, the concept of "true threats" has been a contentious area of law, balancing the need to protect individuals from intimidation and violence against the fundamental right to free speech. Prior to Counterman, the standard defining true threats was often centered around how a "reasonable person" would perceive the statements in question. This objective standard, however, left room for interpretation and, in some cases, could potentially infringe on the First Amendment rights of individuals whose intent was not to threaten.

Counterman Shifts the Standard of Defining True Threats

Counterman v. Colorado shifts this paradigm by requiring a recklessness standard for the prosecution of true threats. “True threats are “serious expression[s]” conveying that a speaker means to “commit an act of unlawful violence.” Virginia v. Black, 538 U. S. 343, 359. The Supreme Court held that the government must demonstrate that the defendant consciously disregarded a substantial risk that their communications would be viewed as threatening violence. This decision underscores the importance of the speaker's mental state in determining criminal liability, aligning with the Court's broader commitment to protecting free expression while addressing the real harms posed by threatening speech.

The impact of Counterman is multifaceted. Legally, it provides clearer guidance for courts grappling with the distinction between protected speech and punishable threats. By adopting a recklessness standard, the Court affirms the need for a subjective assessment of the speaker's intent, thereby offering greater protection for speech that might be offensive or disturbing but not intended as a threat. This nuanced approach recognizes the complexity of human communication, especially in the digital age where tone and context can be easily misconstrued.

For individuals and organizations engaged in advocacy, journalism, and public discourse, Counterman offers reassurance that the First Amendment safeguards their right to speak freely, even on controversial or provocative topics. This protection is crucial for the vitality of democratic debate and the exchange of ideas, ensuring that fear of legal retribution does not silence important voices.

However, the decision also acknowledges the legitimate interests of states in protecting their citizens from intimidation and violence. By setting a threshold of recklessness, Counterman balances the state's responsibility to safeguard public safety with the constitutional guarantees of free speech. This balance is essential in addressing the challenges posed by online harassment and threats, providing a legal framework that can adapt to the complexities of modern communication.

Ultimately, Darren Chaker notes, Counterman v. Colorado significantly influences the legal definition of "true threats," reinforcing the importance of intent in determining criminal liability under the First Amendment. This ruling not only protects the robust exchange of ideas but also ensures that the law can effectively address genuine threats of violence, maintaining the delicate equilibrium between individual rights and public safety.

Sullivan's Influence on Counterman and Defining True Threats

Justice Kagan's majority opinion in Counterman not only reaffirmed the actual-malice standard from Sullivan but also highlighted the necessity of protecting speakers from self-censorship, a concern rooted in the fear that litigation uncertainties could deter even truthful statements. By connecting the dots between defamation protections and the standards for prosecuting true threats, the Court emphasized the integral role of Sullivan's principles in safeguarding free and robust debate under the First Amendment.

Defining a True Threat in 2024: Key Takeaways from the Counterman Decision

The majority opinion and Justice Sotomayor's concurrence in Counterman, by relying heavily on Sullivan, signal that the Supreme Court values the actual-malice standard as a cornerstone of free speech jurisprudence. Despite dissenting opinions, the alignment of six Justices with Sullivan's core tenets suggests a solid foundation against efforts to overturn or weaken this precedent. However, the persistence of Sullivan's critics indicates that challenges to its protections may persist, particularly at the margins of its application.

The Path Forward in Defining True Threats

While the Counterman decision reinforces Sullivan's principles, it also hints at potential areas of contention and future litigation, especially concerning who qualifies as public officials or figures and the standards for assessing actual malice. Nonetheless, Counterman stands as a testament to the significance of Sullivan in the broader context of First Amendment protections, offering reassurance that the standard it sets for free speech and press freedom remains a pivotal part of American jurisprudence.

Defining True Threats: Conclusion

In conclusion, brief writer Darren Chaker finds that Counterman v. Colorado not only reaffirms the Supreme Court's commitment to the protections established by New York Times v. Sullivan but also illustrates the ongoing relevance of these standards in contemporary legal challenges. As the landscape of speech and media evolves, the principles upheld in these cases provide essential guidance for navigating the complexities of free expression in the digital age.