Does this mean people are allowed to stalk supreme court “justices” now? It sounds like they are legalizing stalking.
To play devil’s advocate, I think they’re making a ruling that’s analogous to the murder/manslaughter distinction. Murder (as is commonly defined) requires the prosecution to prove intent, whereas that’s not required for manslaughter charges.
Obviously, it’s possible to prove intent in some cases because people do get convicted of murder sometimes. They’re saying the same thing here - it’s okay to convict someone for this kind of speech if you can prove their intent was harmful. But the speech equivalent of “manslaughter”, where you haven’t proven intent, is constitutionally protected.
I can see ways that this as a good ruling, frankly. I can imagine situations where someone says something that can be interpreted as a threat but that really and truly was “just a joke” or some other such misunderstanding, and I would not want that to result in a conviction.
But proving criminal intent does not require you be able to hold up a magic mirror that reflects the inner thoughts of the person’s soul.
Mens rea in the law is something you can establish. Certain actions a person takes imply intent and that’s adequate for the criminal justice system. This isn’t being flippant; often the entire purpose of the trial is to establish the criminal intent in a case where the actual facts (actus reus) are not really in dispute.
Colorado’s law is defective because it didn’t require establishing mens rea. And while some kinds of crime do not require criminal intent, because this particular crime conflicts with the first amendment, the level of scrutiny on the statute is much higher.
The outcome here should be that Colorado corrects its defective law to close the loophole.
If I understand right, this is a clarification (of sorts) to the standard of “true threat”. Ken White covers a lot of first amendment speech issues and has a very good explanation here: https://popehat.substack.com/p/supreme-court-clarifies-true-threats
So. To the practitioner, or to the internet tough-talker, what does this mean? It means that the law of the land, at least 7-2, is that a threat is only outside the protection of the First Amendment if:
- A reasonable person, familiar with the context, would interpret the threat as a sincere statement of intent to do harm, and
- The speaker was reckless about whether the threat would be taken sincerely — that is, they “consciously disregarded a substantial risk” that it would be taken seriously.
Holy shit. Supreme Court just declared open season on women.
No, they declared Colorado’s law is bad. This was a decision written by a liberal woman, joined by the other two liberal justices and four of the conservative ones. They do not have it out for women.
They essentially said that the messages he sent were covered under the first amendment. Have you read the messages he sent?
Among Counterman’s communications to Whalen were messages that read: “Was that you in the white Jeep?” and “You’re not being good for human relations. Die. Don’t need you.” Others used expletives.
Counterman, citing mental illness and delusions, argued that his messages were not intended to be threatening and were thus protected speech.
Not the guy you responded to but god damn… I can’t see that message being interpreted as anything BUT a threat. All I gotta do is declare insanity I guess.
They didn’t say that at all. They said the standard Colorado is using to convict people is too loose, and could theoretically be used to restrict constitutionally protected speech. They were not ruling on merits on if this speech is protected or not. It probably isn’t. Now the case has been sent back to Colorado, not closed. Colorado can retry him, and it’s quite likely they would win even under the stricter standard. But they can’t try him under a loose standard that could allow for protected speech to be criminalized. This has very little to do with the actual case, and a lot to do with the law that Colorado was using. Most articles written about this are lacking in information and misleading at best, you could find better information on the ruling on scotusblog or the ruling itself.
Kangaroo court, lmao.
Among Counterman’s communications to Whalen were messages that read: “Was that you in the white Jeep?” and “You’re not being good for human relations. Die. Don’t need you.” Others used expletives. . . .
. . . . Whalen has described the messages from Counterman, which came to her over a two-year span beginning in 2014, as life-threatening and life-altering. She never responded to Counterman during this time and blocked his Facebook account at least four times, prompting him to continue messaging her from other platforms or through new Facebook accounts he created. . . .
“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,” Hauss said.
Well, it’s good that we have safeguards for those who sit on their phone wrong and thereby unintentionally create block-evading accounts on multiple platforms. Guy really went to jail and it was all two solid years of misunderstandings. /s
I’m hearing harassment officially can’t be prosecuted, if we’re turning a blind eye to that degree. A lot of people are going to be emboldened by this, like they already took the law seriously anyway.
Like, yeah, a friend of mine nearly or actually got run off the road several times because the perpetrator wanted to date his gf, but maybe the would-be murderer was just a really bad driver. It was a notoriously dangerous road for both of them to be on ¯\_ (ツ) _/¯
The saddest part of this is I’m more shocked the CO police did something about it. Over here, they refused even a restraining order until we could show them a physical crime, which…you know, would kinda be too late.
Justice Amy Coney Barrett, in a dissent to the ruling joined by fellow conservative Justice Clarence Thomas, wrote that the decision “unjustifiably grants true threats preferential treatment.”
…What the fuck? Am I taking crazy pills? In what fucking world do Thomas and Barrett advocate for a sane and rational approach to anything?
