Supreme Court

Supreme Court Refuses To Expand the 'True Threats' Exception for Free Speech

Plus: Maine prostitution measure becomes law, "significant misconduct" in jail where Epstein hung himself, Mike Pence defends free markets, and more...

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SCOTUS ruling in Facebook threats case "neither the most speech-protective nor the most sensitive to the dangers of true threats." For statements to be considered true threats, unprotected by the First Amendment, the person making them must have some understanding the statements could be construed as threatening, the Supreme Court held yesterday. The case—Counterman v. Colorado—involves a defendant convicted of stalking after sending a bevy of Facebook messages to someone identified as C.W.

In a 7-2 ruling issued yesterday, the Court vacated the conviction and remanded the case back to the lower court. The court's three liberal justices were joined by Justices Brett Kavanaugh, Neil Gorsuch, John Roberts, and Samuel Alito.

"True threats of violence are outside the bounds of First Amendment protection and punishable as crimes," noted Justice Elena Kagan in the majority's opinion:

Today we consider a criminal conviction for communications falling within that historically unprotected category. The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements. We hold that it does, but that a mental state of recklessness is sufficient. 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.

In this case, Billy Counterman sent C.W.—a singer and musician who lived in his community—hundreds of Facebook messages between 2014 and 2016. "Some of his messages were utterly prosaic ('Good morning sweetheart'; 'I am going to the store would you like anything?')—except that they were coming from a total stranger," notes Kagan. "Others suggested that Counterman might be surveilling C. W.," and some expressed anger at her.

"Fuck off permanently," said one message. Another read: "You're not being good for
human relations. Die."

Understandably, the messages frightened C.W., who worried that Counterman was following her and might hurt her. She contacted local police, who charged him under a Colorado stalking statute that prohibits "repeatedly . . . make[ing] any form of communication with another person" in "a manner that would cause a reasonable person to suffer serious emotional distress."

Counterman argued that his messages were not true threats and thus were protected by the First Amendment.

The trial court weighed whether Counterman's messages were true threats using a "reasonable person" standard: would some hypothetical, objective "reasonable person" find them threatening? It found that they would, meaning the messages were not protected speech. The case was put before a jury, which found Counterman guilty under the stalking statute.

The Colorado Court of Appeals then affirmed this decision, holding that "a speaker's subjective intent to threaten" is not necessary to convict the speaker for threatening communications. The Colorado Supreme Court declined to review the case.

"Courts are divided about (1) whether the First Amendment requires proof of a defendant's subjective mindset in true-threats cases, and (2) if so, what mens rea"—that is, level of intent or knowledge—"standard is sufficient," noted Kagan. Thus, the Supreme Court decided to hear Counterman's case.

The majority's opinion explains:

The law of mens rea offers three basic choices. Purpose is the most culpable level in the standard mental-state hierarchy, and the hardest to prove. A person acts purposefully when he "consciously desires" a result—so here, when he wants his words to be received as threats. … Next down, though not often distinguished from purpose, is knowledge. Ibid. A person acts knowingly when "he is aware that [a] result is practically certain to follow"—so here, when he knows to a practical certainty that others will take his words as threats. A greater gap separates those two from recklessness. A person acts recklessly, in the most common formulation, when he "consciously disregard[s] a substantial [and unjustifiable] risk that the conduct will cause harm to another." That standard involves insufficient concern with risk, rather than awareness of impending harm. But still, recklessness is morally culpable conduct, involving a "deliberate decision to endanger another." In the threats context, it means that a speaker is aware "that others could regard his statements as" threatening violence and "delivers them anyway."

Among those standards, recklessness offers the right path forward. We have so far mostly focused on the constitutional interest in free expression, and on the correlative need to take into account threat prosecutions' chilling effects. But the precedent we have relied on has always recognized—and insisted on "accommodat[ing]"—the "competing value[s]" in regulating historically unprotected expression. Here, as we have noted, that value lies in protecting against the profound harms, to both individuals and society, that attend true threats of violence—as evidenced in this case.

The recklessness standard gives enough "breathing space" to protected speech "without sacrificing too many of the benefits of enforcing laws against true threats," Kagan continued:

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.

As you can see, the Court does not take lightly the idea that speech can cause harm even when it is not explicitly intended as a true threat. But in considering a speaker's intent but also holding it to the lower recklessness standard, the Court attempts to balance the competing interests of protecting free expression (and avoiding overcriminalization) and protecting against the harms that can come from true threats of violence.

So, it's frustrating to see some portray this ruling as "gut[ting] protections for cyberstalking victims" or decree "that stalking is free speech."

In Counterman's case, he was not convicted for physically stalking C.W. but rather for his communications, so the idea that this reaches all sorts of stalking is wrong.

Nor does the fact that these were Facebook messages make a difference. The court's ruling turns on the intent of the speaker, not whether their messages were sent via social media or the Postal Service.

The ruling has been commended by civil liberties and First Amendment groups.

"We're glad the Supreme Court affirmed today that inadvertently threatening speech cannot be criminalized," Brian Hauss, a senior staff attorney with the American Civil Liberties Union's Speech, Privacy, & Technology Project, said in a statement. "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."

"Today'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 'true threat,'" commented the Foundation for Individual Rights and Expression (FIRE) on Twitter. "Fewer prosecutors will be able to criminalize speech tomorrow than was possible yesterday."

"FIRE and other civil liberties organizations had also advocated for an even stricter First Amendment test beyond recklessness to ensure that Americans would not face prosecution for parody or political commentary that unintentionally seemed threatening to a 'reasonable person,'" notes the organization. "While the Court did not adopt the stricter standard, we are heartened by the Court's statement that hyperbole will not constitute a true threat and that recklessness sets a high bar for any prosecution."

There was some divide among the justices over what mens rea standard to embrace.

"Two justices—Sotomayor and Gorsuch—think that the recklessness standard is sufficient for this case, because it involves repeated unwelcome contact, but that true threats more generally should require intent to threaten," notes First Amendment lawyer Ken "Popehat" White. "Two justices—Barrett and Thomas—think the First Amendment doesn't require a subjective component to the true threats test at all."

White himself worries that "the recklessness standard merely repeats the problems of the so-called 'objective standard.'"

Let's take the familiar example of Justin Carter, a stupid kid on a gaming forum trash-talking, whose trash-talking is observed by a middle-aged mom from, say, Canada. I'm not picking on Canada, that's a real-world example. Under the Supreme Court's decision today, to punish the trash-talking Justin for a true threat the government would have to prove that (1) a reasonable person would take the trash-talk as a sincere expression of intent to do harm, and (2) Justin consciously disregarded a substantial risk it would be taken that way.

But how is that danger evaluated, exactly? Is Justin required to assume that people outside the League of Legends forums (a dump site of arrested adolescence and jibbering mother-shamers) are going to read his post, and therefore assess how his post will be taken by Canadian mothers? Or is he only required to consider his intended or likely audience? Is it enough that Justin can introduce evidence about his expectations of how the unbathed denizens of his forum would understand him, perhaps through expert testimony? Is it enough to argue to the jury that idiot manchildren rarely comprehend their words may land differently on different ears? I know how "reckless disregard" would work in a monoculture, but what about in a swarm of violently disputing subcultures?

Ultimately, the court's decision in Counterman was "neither as speech-protective nor as censorship-friendly as it could be," White suggests.

FOLLOW-UP

Maine Gov. Janet Mills, a Democrat, has signed into law a measure to partially decriminalize prostitution. The measure removes criminal penalties for people selling sex in some circumstances, while continuing to criminalize anyone who attempts to pay for sex as well as sex workers found guilty of "publicly soliciting patrons." It also keeps in place criminal penalties for "causing or aiding another to commit or engage in sexual conduct or sexual acts in exchange for a pecuniary benefit," "leasing or otherwise permitting a place" to be used for prostitution, and other activities surrounding sexual exchange even when consent is involved. And it redefines many of these activities—which previously fell under the banner of prostitution—as acts of "commercial sexual exploitation."

We covered Maine's measure earlier this month, noting that this model of prostitution law has many critics among sex workers and human rights advocates:

Essentially, the Maine measure would institute what's known as "asymmetrical criminalization" or the "Nordic Model" of prostitution laws, a scheme criminalizing people who pay for sex but not totally criminalizing those who sell it. This model has become popular in parts of Europe and among certain strains of U.S. feminists.

But keeping sex work customers criminalized keeps in place many of the harms of total criminalization. The sex industry must still operate underground, which makes it more difficult for sex workers to work safely and independently. Sex workers are still barred from advertising their services. Customers are still reluctant to be screened. And cops still spend time ferreting out and punishing people for consensual sex instead of focusing on sex crimes where someone is actually being victimized.

A recent study of prostitution laws in European countries found full decriminalization or legalization of prostitution linked to lower rape rates, while countries that instituted the Nordic model during the study period saw their rates of sexual violence go up.

The nonprofit advocacy group Decriminalize Sex Work (DSW) noted in a statement that "Maine is now the first and only state to enact the policy model referred to as the Nordic model, the Entrapment model, or the End Demand model." While pushed "as a means of curtailing prostitution and combating trafficking… evidence from around the world shows it does neither," the group adds.

"Lots of supporters of Entrapment model legislation are feminists who support bodily autonomy as it relates to abortion but do not think people should have that same right to bodily autonomy should they choose to engage in sex work," commented Rebecca Cleary, a staff attorney at DSW. Such laws "are misguided and misinformed, driven by harmful and stigmatizing ideology and the false promise that they will abolish the sex industry."

FREE MINDS

No foul play, but Epstein was "provided with the opportunity" for suicide. A new investigation into Jeffrey Epstein's death found "significant misconduct and dereliction of their duties" by federal jail staff at the Manhattan facility where Epstein hung himself while awaiting trial for sex trafficking. The investigators "did not uncover evidence" to contradict the finding that Epstein killed himself. More from The New York Times:

Jeffrey Epstein, who was found dead in a cell with a bedsheet tied around his neck in 2019, died by suicide, not foul play—after a cascade of negligence and mismanagement at the now-shuttered federal jail in Manhattan where he was housed, according to the Justice Department's inspector general.

In a report released on Tuesday after a yearslong investigation, the inspector general said that leaders and staff members at the jail, the federal Metropolitan Correctional Center, created an environment in which Mr. Epstein, a financier awaiting trial on sex trafficking and conspiracy charges, had every opportunity to kill himself.

The inspector general, Michael E. Horowitz, referred two employees, including one supervisor, for criminal prosecution by the U.S. attorney for the Southern District of New York after they were caught falsifying records. But prosecutors declined to bring charges, the report said.

The inspectors did not uncover evidence to suggest any foul play, but did find what the Times describes as "a remarkable, at times unexplained, succession of circumstances [that] made it easy for him to kill himself." Despite an earlier suicide attempt by Epstein, staff allowed him to stockpile blankets, linens, and clothing. And they left him without a cellmate for a full day, contra a jail psychologist's recommendation that he always have one. "The combination of negligence, misconduct and outright job performance failures documented in this report all contributed to an environment in which arguably one of the B.O.P.'s most notorious inmates was provided with the opportunity to take his own life," the new report states.

FREE MARKETS

Former Vice President Mike Pence has some words (in Reason) for conservatives who are abandoning free market principles. "Today, some conservatives are losing confidence in themselves, our movement, and our fellow Americans and are instead looking to government to be the solution to problems in the free market," Pence writes:

This stunning about-face is of great concern to traditional conservatives like me who remain unabashed advocates of the free market, the greatest engine for prosperity in human history. Free markets have done more than any other system to raise standards of living, generate broad-based wealth, spur technological innovation, cure debilitating illness, and improve quality of life for billions of people around the globe. The entirety of American history proves that the free market, not government, has the ultimate power to shape society for the better.

QUICK HITS

• The government's crackdown on flavored vaping products hasn't stopped their proliferation; it simply led to relatively regulated and safe products being replaced by "unauthorized disposable vapes from China," notes the Associated Press. Since 2020, the number of different electronic cigarette devices sold here has nearly tripled—a surge that "stands in stark contrast to regulators' own figures, which tout the rejection of some 99% of company requests to sell new e-cigarettes."

• State legislatures can't ignore the Constitution or evade judicial review when it comes to election rules, the Supreme Court ruled on Tuesday.

• An update on the court proceedings concerning the government's attempt to block Microsoft from acquiring Activision Blizzard:

• President Joe Biden is rolling out a $42 billion Broadband Equity, Access, and Deployment (BEAD) plan. "That is an obscene amount of money to invest in technology that will be obsolete by the time it's built," Reason's Ronald Bailey writes.

• Artificial intelligence is wreaking havoc on all sorts of digital platforms and processes, writes Platfomer's Casey Newton.

• The U.K.'s Online Safety Bill "poses a serious threat" to end-to-end encryption, Apple says.