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Everyone with access to the internet probably understands that it can be a very scary place. Hiding behind thin veils of anonymity, many users become emboldened to send threatening or harassing messages to unsuspecting victims online.

Fortunately, the law has typically taken the side of victims of stalking and harassment by making it relatively easy for a victim to hold the perpetrator accountable for their actions in a court of law. However, this could all change soon thanks to the recent U.S. Supreme Court (SCOTUS) ruling in favor of an online harasser in Counterman v. Colorado. This ruling adds enhanced scrutiny standards for evaluating what is considered to be a credible threat in online harassment cases.

What Happened in Counterman v. Colorado?

This case involves singer-songwriter Coles Whalen and Billy Raymond Counterman, who was convicted in Colorado in 2017 of stalking the singer. Between 2014 and 2016, Counterman sent thousands of messages on Facebook to the singer, oscillating between bizarre messages and more aggressive communications asking the singer to die. This persisted even after Whalen blocked Counterman, as the defendant resorted to creating new accounts under aliases to continue messaging the singer.

When the case went to trial in 2017, the Colorado court used an objective test to establish whether a reasonable person would interpret the perpetrator’s messages as hostile or threatening. The court ultimately found that the years of harassing messages from Counterman would likely be interpreted as threatening by any reasonable person, thus resulting in a guilty conviction against Counterman and four and a half years of prison.COURT

However, the defense appealed the decision all the way to the Supreme Court by arguing that the defendant is mentally unstable and did not have willful intent to threaten Whalen. The case was heard by SCOTUS in April of 2023, six years after the original guilty verdict against Counterman. The question considered by SCOTUS was whether threatening messages were enough to warrant prosecution or if criminal intent was to be considered as well. This was after the defendant’s attorneys argued that Counterman suffered from mental health problems that prevented him from understanding that his messages could be considered threatening by neurotypical people.

This last part is crucial, as it shifts the emphasis from the victim to the perpetrator. That is, it is no longer important whether the victim felt threatened — or, rather, whether any reasonable person in the position of the victim would interpret the messages as true threats — but whether or not the aggressor knew that they were making a credible threat to the victim.

What Are the Implications of Counterman v. Colorado?

The 7-2 SCOTUS ruling further clarifies what can and cannot be considered harassment in online speech. Defenders of Counterman claimed that the original ruling against him was flawed because it would allow politicians and other high-profile individuals to weaponize online communications. This could result in frivolous lawsuits against people who claim that benign comments like criticism and dissent should be categorized as true threats.

Moving forward, any conviction of online stalking or harassment will be held up to additional scrutiny by requiring the prosecution to prove that the defendant intended to deliver threatening messages. Previously, it was only required that a reasonable person would interpret the messages to be of a threatening nature for a conviction, regardless of whether or not the perpetrator had any understanding of how the messages would be interpreted by the victim.

Now, the prosecution will have to show both that:

  • The communications can be interpreted as a “true threat” by any reasonable person, and
  • The perpetrator had an understanding that their messages were threatening in nature

This will make it more complicated for online harassment cases to move forward as they will be held to higher judiciary scrutiny. According to this SCOTUS ruling, harassment is protected under the First Amendment as long as there is any ambivalence on the original intent behind the messages, which is a deviation from what has traditionally been considered to be protected under the First Amendment.

What Does the First Amendment Protect?

The First Amendment protects freedom of speech for everyone in the United States. It includes acts of verbal communication as well as non-verbal communication, like refusing to salute the flag or choosing what to wear. The issue of what is and is not protected by the First Amendment has been hotly debated throughout the past century, with numerous court cases establishing new precedents for what does and does not fall under First Amendment protections.

Some examples of actions that are protected by the First Amendment include:

  • The right not to speak, including the right not to say something that would incriminate yourself
  • The right to wear articles of clothing in protest
  • The use of offensive language to convey political messages
  • Contributing to political campaigns
  • Advertising commercial products and services
  • Engaging in symbolic speech
  • The right to pray in public schools

The rights extended under the First Amendment are not unlimited, however. Some examples of actions not protected under the First Amendment include:

  • Inciting imminent lawless action
  • Making or distributing obscene materials
  • Making obscene speeches at school-sponsored events
  • Preventing employers from setting their own rules on speech or conduct
  • Making false advertisements
  • Engaging in defamatory speech
  • Making true threats

This last definition is the part that is critical in harassment cases, as the plaintiff has to demonstrate that the defendant’s actions are not protected by the First Amendment since they are true threats.

What Counts as a True Threat?

The Supreme Court has made it expressly clear that threats of violence are not protected by the First Amendment, specifically stating that “protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur” falls outside its scope.

However, the Supreme Court has also made it clear that these actions have to be credible or true threats. This was first defined in Watts v. United States: Watts had been convicted for threatening to shoot President Lyndon B. Johnson if he ever instituted a military draft. Watts appealed, and the Supreme Court ruled in his favor, citing that he was merely engaging in political protest and had neither the intent nor the ability to shoot the President. Thus, his statement was regarded as an empty threat that did not fall outside of the scope of the First Amendment.

Therefore, for a threat to be considered to fall outside of First Amendment protection, it must first be violent in nature and — critically — it must be credible. If the speaker has no ability or legitimate intent to carry out or incite another to carry out violent acts, then the speech cannot be considered a true threat and is therefore protected under the First Amendment. The Counterman v. Colorado decision further clarifies what is and is not considered a true threat in online speech by requiring the speaker to have an understanding of what their speech entails.

What Happens Next in Counterman v. Colorado?

The 2017 conviction against Counterman was reversed because of this SCOTUS ruling. However, this doesn’t mean that Counterman is completely off the hook. The case will now be sent back to lower courts to examine whether Counterman understood that his messages were perceived as threats. This ruling does not mean that Counterman was innocent, but rather that the standards used to determine his guilt in the prior conviction were not sufficiently robust.

As such, the case will be reviewed by lower courts and Counterman will be mentally evaluated to determine whether or not he understood the extent of the threats he was making. He could potentially be deemed innocent if found mentally unwell, although the SCOTUS decision explicitly states that a “mental state of recklessness” is sufficient to show intent. This sets the bar relatively low for showing that the speaker had criminal intent, which means Counterman is likely to be reconvicted even with the higher scrutiny standards.

What Are Victims of Online Harassment Entitled To?

Typically, harassment cases are handled in criminal rather than civil courts. That means that the aggressors will be criminally prosecuted and may end up serving jail time for the crimes committed. Although this SCOTUS ruling does pose additional barriers for victims of stalking and harassment, they may still be able to obtain a favorable result in a criminal court if they can prove that the aggressor had willful intent to harass or stalk.

Victims may also be able to recover damages by filing a lawsuit in civil court if they were stalked or harassed online. Typically, victims of online harassment or stalking are entitled to financial compensation for damages like:

  • Mental anguish
  • Anxiety and depression
  • Loss of enjoyment of life

Victims will not receive any compensation if the aggressor is convicted in criminal court only. A criminal case is one where the state prosecutes the defendant for violating the law and ensures that they face applicable fines and punishment. A civil case is one where a private individual brings a lawsuit against another party. Victims who wish to recover damages for the pain they endured due to stalking or harassment must initiate a civil lawsuit.


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