The Supreme Court vacated the conviction of a Colorado man accused of stalking a musician online, with the majority creating a new standard of “true” and “reckless” threats in order to protect freedom of expression while stopping actual threats.
The court <a href="https://apnews.com/article/supreme-court-true-threat-first-amendment-34dae41b15463a52b90f2b936fa3bb83" target="_blank" rel="noopener">ruled</a> 7-2 to vacate and remand the conviction of Billy Raymond Counterman in Counterman v. Colorado. The majority was formed by the court’s liberal justices along with conservative Justices Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and John Roberts, with justices Clarence Thomas and Amy Coney-Barret dissenting. The petitioner in this case, Counterman, was convicted by a Colorado trial court of stalking a musician in 2021, with his appeal being rejected by a Colorado appeals court the same year.
Elena Kagan wrote in the court’s majority opinion, stating, “The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another,” but clarified that “[t]rue threats of violence are outside the bounds of First Amendment protection and punishable as crimes.&#8221;
Counterman <a href="https://www.cnn.com/2023/06/27/politics/supreme-court-ruling-counterman-v-colorado/index.html" target="_blank" rel="noopener">sent</a> the Colorado musician hundreds of messages from several Facebook accounts in what his lawyers saw was a result of mental illness and a poor sense of humor. Counterman sent the musician, referred to by the court as C.W., everything from memes to threats, such as “You’re not being good for human relations. Die.” as well as “Was that you in the white Jeep?”
The musician was distraught, and after failing to stop the onslaught of new Facebook accounts Counterman made after his others were blocked, and hiring security, filed suit against Counterman.
In this case, the main issue at hand for the high court was whether Counterman’s statements constituted “true threats,” or whether his circumstances and intent or lack thereof protected him via the First Amendment. The justices struggled to balance the interests of protecting freedom of speech while simultaneously protecting Americans from true threats and their implications. 
Kagan recognized the fine balance the court has to strike between the two issues, concluding, “As with any balance, something is lost on both sides: The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats. But in declining one of those two alternative paths, something more important is gained: Not ‘having it all’ — because that is impossible — but having much of what is important on both sides of the scale.”
Much of the court’s decision was due to the fact that there was no evidence that Counterman ever physically interacted with the alleged stalking victim, with the only interaction being over Facebook messages. This further means that this decision does not affect any other laws relating to stalking but purely focuses on the intent of the speaker of threats relating to the First Amendment, per <a href="https://reason.com/2023/06/28/supreme-court-refuses-to-expand-the-true-threats-exception-for-free-speech/" target="_blank" rel="noopener">Reason</a>.
The outcome of the ruling led to many civil liberties and First Amendment groups expressing their approval on social media.
&#8220;We&#8217;re glad the Supreme Court affirmed today that inadvertently threatening speech cannot be criminalized,&#8221; Brian Hauss, an attorney with the American Civil Liberties Union&#8217;s Speech, Privacy, &amp; Technology Project, said in a <a href="https://www.aclu.org/press-releases/aclu-commends-supreme-court-decision-to-protect-free-speech-in-case-defining-true-threats" target="_blank" rel="noopener">statement</a>. &#8220;In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received. The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.&#8221;
&#8220;Today&#8217;s Supreme Court decision in Counterman v. Colorado is largely good news for the First Amendment because it sets a higher bar for punishing speech as a &#8216;true threat,'&#8221; <a href="https://twitter.com/TheFIREorg/status/1673735874117345281" target="_blank" rel="noopener">commented</a> the Foundation for Individual Rights and Expression on Twitter. &#8220;Fewer prosecutors will be able to criminalize speech tomorrow than was possible yesterday.

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Supreme Court Sets New Standard For ‘True Threats’

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Supreme Court Sets New Standard For ‘True Threats’