Courts

Chief Justice John Roberts Plays Stalking For Laughs

Another potentially awful decision coming from the Supreme Court.

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First Amendment textConvicted stalker Billy Raymond Counterman is challenging how courts determine what statements are “true threats” not protected by the First Amendment, and when someone is just supposed to suck up thousands of unsolicited, disturbing messages — even when we know more than 50% of female homicide victims reported being stalked first.

But Counterman’s taken the argument all the way to the Supreme Court, and oral arguments were this week, as reported by SCOTUSBlog.

Both sides in Wednesday’s case agree that the issue is an important one. Counterman stresses that the “notion that a person can spend years in prison for a ‘speech crime’ committed by accident is chilling.” But the state of Colorado, which prosecuted Counterman, counters that Counterman’s messages frightened their recipient and disrupted her life. “This is precisely why threats of violence are not protected by the First Amendment,” the state says: to shield individuals from the fear of violence, which follows from the threats “no matter what the person making the threat intends.”

Counterman argues for a subjective test for stalking charges that looks to the speaker’s intent:

The test for determining whether speech is a “true threat” that is not protected by the First Amendment must consider the speaker’s intent, Counterman contends. A purely objective test, like the one used by the Colorado court, runs the risk of criminalizing “inevitable misunderstandings” and good-faith miscommunications – particularly when so much speech occurs on the internet, where “the evidence of criminal conduct consists of bare words on a screen.”

Professor Mary Anne Franks is a First Amendment scholar and an amici in the case, arguing for the “well-established, historical support for an objective standard in determining true threats and to highlight the costs a subjective standard would impose on free speech generally, and to individuals and communities targeted by stalking in particular.” Franks notes the oral argument revealed a take at home on Fox News — that society is too filled with snowflakes for the objective person test to be workable. Justices Neil Gorsuch, Clarence Thomas, and Amy Coney Barrett lamented an objective person standard in a world where people are “increasingly sensitive” or “hypersensitive.” Which, okay Boomer, maybe the “objective” standard isn’t deadened empathy from lead exposure.

But remember, the objective person standard is all the hell over the legal system, but it’s only when the well-being of stalking victims is on the line that the Court starts balking at it.

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But — unfortunately — that wasn’t the only moments from the oral argument to give the icks. Chief Justice Roberts read a small selection of Counterman’s statements to his victim to laughter in the Court.

Franks points out this was but a small selection of the thousands of messages Counterman sent his victim, devoid of any context. But the Chief Justice thought it was a great idea to play it for laughs.

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The Court — or at least the right-wing majority — seems, from the oral argument, willing to prioritize nebulous chilling impacts (which, how chilling can it possibly be when stalking is still a problem) over the harms suffered by stalking victims. Just another sacrifice to the conservative movement’s perversion of the First Amendment.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

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