Comment: High court protects speech at cost of women’s silence

By Noah Feldman / Bloomberg Opinion

In a case involving violent threats made by a stalker against a Colorado singer, the Supreme Court has opted to strengthen free speech rather than to protect potential victims. The upshot is that it will be harder to prosecute online stalkers who intimidate their victims into silence.

The case did not break down along obvious ideological lines, or at least not the lines you might imagine. The majority opinion was written by Justice Elena Kagan. The principal dissent was by Justice Amy Coney Barrett, who sided with the victim. And Justice Sonia Sotomayor wrote a concurrence, joined in part by Justice Neil Gorsuch, arguing that the majority had not defended free speech enough.

At issue in the case, Counterman v. Colorado, is the rule that so-called “true threats” do not receive the same First Amendment protection as ordinary speech. True threats are one of the categories that the courts at one time treated as entirely outside of the First Amendment, along with libel, obscenity and “fighting words.” Over the years, the Supreme Court has applied some free-speech principles to these categories, so they aren’t totally unprotected by the First Amendment; but the categories still matter as exceptions to the normal principles of free expression.

The threats that Billy Counterman sent the anonymous victim in the case were characteristic examples of the online stalking and harassment that disproportionately target women. Counterman, who did not know his victim, began by sending hundreds of Facebook messages to her that sounded as though they knew one another. (Disclosure: I advise Facebook’s parent company, Meta.) Then he started telling her that he had seen her, implying that he was surveilling and stalking her. Finally, he issued direct, violent threats: “F••k off permanently.” “Staying in cyber life is going to kill you.” And “You’re not being good for human relations. Die.”

The state of Colorado charged Counterman under a stalking statute that, among other things, prohibits “repeatedly … making any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.” (Because there was no direct evidence of surveillance, he wasn’t charged with in-person stalking.)

The state courts applying Colorado law said that the victim’s lawyers needed to prove only that a reasonable person would’ve been threatened by Counterman’s statements and that the victim did indeed feel threatened. The reasonable person standard is what lawyers call an “objective” standard in criminal law, meaning that the jury can determine objectively what any reasonable person would think about the facts, instead of determining what a specific defendant subjectively believed his threats to mean. Barrett agreed with the lower courts’ upholding the conviction.

But Kagan’s majority opinion held that, when it comes to the doctrine of true threats, the objective standard is not good enough. She did not go all the way to the other extreme, which would have been a subjective standard requiring the prosecution to prove that Counterman actually did intend to threaten his victim. Instead, Kagan adopted a middle ground.

Kagan, whose opinion was joined by Justices John Roberts, Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson, said it would be enough for the prosecution to prove that Counterman recklessly disregarded the threatening aspect of his speech. She borrowed the idea from the context of libel and the famous New York Times v. Sullivan case. In that case, the court held that, for a public figure to win a libel case, the public figure must prove that the defendant either subjectively knew the defamatory statement was false or recklessly disregarded its falsehood when making it.

The logic of using the reckless disregard standard, Kagan explained, is to protect against the chilling effect of punishing threats or libel even when the speaker didn’t intend to threaten or to defame. The basic idea here is that we should be distrustful of government authority when it criminalizes speech acts. We want a free market of ideas, and so we want to protect speech that comes close to the line of being threatening or libelous without quite crossing that line.

The court therefore vacated Counterman’s conviction. He could be retried under the new, higher standard if Colorado prosecutors decide not to drop the charges.

In her dissent, Barrett made the powerful point that the Sullivan standard applies only to public figures who want to sue for libel, not for ordinary people who have been libeled. That strongly suggests that the reckless disregard standard is too high when it comes to protecting ordinary people from threats of violence.

What is really at issue in the Counterman situation is how much we as a society want to protect against violent threats. Online, it can be extraordinarily difficult to prove anything about the threatening person’s intent; even reckless disregard.

To tell someone that they should die — especially when you seem to have been stalking them — is, in the strongest and scariest possible terms, telling them to be silent. Since it is disproportionally women who are the targets of online stalking and threats, the place we draw the true-threats line implicates the chilling of women’s speech, not only the speech of people who want to make violent threats.

In practice, the court’s new standard makes prosecution harder. And it invites appellate courts to overturn jury convictions in stalking cases if the courts think there was no proof that a defendant reckless disregarded the threatening nature of his statements.

Perhaps Kagan wanted to strengthen New York Times v. Sullivan, which has come under criticism from the court’s most right-wing members. (Justice Clarence Thomas, in addition to joining Barrett’s dissent, also wrote his own to take the opportunity to criticize Sullivan.) If so, she may have succeeded, since the Counterman case weaves the Sullivan standard deeper into the fabric of free-speech law. Yet the different contexts of celebrity defamation and violent online threats seem to me to call for a more nuanced ruling.

We should definitely protect free speech against chilling effects. But we need to keep in mind that violent threats can also compel silence.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”