Annie Seifullah and Jillian Bowen
The First Amendment of the United States Constitution protects freedom of speech, but this protection is not absolute. True threats, which our courts have identified as statements that frighten or intimidate someone into believing that they will be harmed, are an example of speech that is not constitutionally protected. Because social media, tech platforms, and smart devices are so embedded in the ways humans communicate and connect, what actually constitutes a true threat has become not only a more prevalent inquiry in our courts–but also a more difficult question to answer.
The Supreme Court has held that true threats of violence fall outside of First Amendment protections and violate the law under the justification that it is important to protect people from the fear of violence, the disruption that flows from such fear, and the possibility that the threatened violence will occur. Counterman v. Colorado presented the Supreme Court with a unique opportunity to distinguish the nature of true threats in the context of technology-facilitated abuse; unfortunately, the Court failed to seize this opportunity so when it issued its decision on June 27.
At its core, Counterman is not about free speech–it is about stalking. Billy Raymond Counterman refused to take no as an answer from a woman (C.W.) whose attention he felt entitled to. So, he targeted C.W. with thousands of unwanted messages, some of which were extremely alarming–to the point that C.W. did not feel safe leaving her home or continuing to show up to her work. She changed her routines, bought a gun, and lived in constant fear and anxiety of her stalker. When Counterman was convicted for his threatening conduct, he claimed it was protected by the First Amendment. And his defense worked.
The Backdrop
For more than 50 years, the Court has been careful to protect speech–even threats–where the speech was hyperbolic or meant as a political statement. The “true threats doctrine” was born from the decision in Watts v. U.S. (1969), where the court sided with Robert Watts, a teenager who opposed the draft (“if they ever make me carry a rifle, the first man I want to get in my sights is L.B.J”). In Watts, the court considered the context of the threatening statements and the credibility of the threat from the point of view of the targeted audience and held, rightfully, that speakers like Watts deserve protection from criminal prosecution.
Since Watts, the Court has been careful to carve out even more protections for speech, even when it might be perceived as threatening–especially if the speech was not likely to lead to violence. The Court has expanded true threats doctrine to protect, for example, political activism like protesting wars or promoting economic boycotts, as we saw in Hess v. Indiana (1973) and NAACP v. Claiborne (1982). The Court has also found that even opinions that an overwhelming majority find offensive and abhorrent deserve protection, as we saw in Brandenburg v. Ohio (1969), where the Court held that the speech of the Ku Klux Klan was inflammatory but did not rise to the level of imminent harm.
Prior to Counterman, the Court took up a similar question relating to true threats and online speech in Elonis v. United States (2015). In that case, Anthony Douglas Elonis posted violent and threatening rap lyrics on Facebook, which were directed at his wife and others. Elonis was arrested for these threats but claimed his words were merely creative/artistic expressions of his lived experience as a rapper and that he had no intent to threaten or harm. The Court overturned his conviction but did not fully resolve the issue of when online statements rise to the level of “true” threats, leaving the current Court with an open question.
Previously, in cases like Watts, Courts applied the objective standard to determine if a speaker’s statement could be regarded as a true threat. This standard focuses on whether a reasonable person would regard the speaker’s statements as a true threat of violence. A Colorado jury convicted Counterman under this standard because it believed that C.W. reasonably regarded Counterman’s conduct as threatening. Counterman challenged the standard and argued that applying an objective standard (based on what the receiver of speech reasonably felt) was unlawful because it did not appropriately consider mens rea (what the speaker intended by the speech).
The Supreme Court vacated and remanded the jury’s conviction and sided with Counterman, holding 7-2 that the “true threat” should be replaced by a subjective recklessness standard, which requires proof of the speaker’s mental awareness. This new standard requires the speaker to understand that others could regard his statements as threatening, but he made them anyway.
In this decision, the Court failed to distinguish the importance of protecting victims of technology-facilitated abuse, especially in the context of gender-based violence, from the value of protecting bona fide political and artistic expression. While both the threatening speech in Counterman and Elonis was made on Facebook, the speech was in the form of publicly posted rap lyrics in Elonis, whereas in Counterman the language was in the form of direct messages to one person (C.W.) with content that was interpreted as threatening and intimidating.
Distinguishing Free Speech from Tech Abuse
The National Resource Center on Domestic Violence (NRCDV) defines technology-facilitated abuse (or “tech abuse” for short) as the use of tech to monitor, surveil, bully, intimidate, or stalk a person. Regardless of whether one agrees with the outcome in Counterman, there is no question that cases involving tech abuse of the Counterman type should be treated differently than political or artistic speech. Although those forms of speech may be abhorrent or threatening to some, they do not rise to the level of being a true threat to one, as tech abuse does.
Billy Raymond Counterman’s speech was abuse targeted at one woman. It was an obsessive method of power and control that was amplified and enabled by his use of digital platforms.
When it comes to threats of stalking and persistent harassment, especially those enabled by technology, the stakes could not be higher for victims. Stalking victims report dramatic changes in their lives as a result of being stalked, with one in seven being forced to move as a result of being stalked, one in eight losing time from work, and one in four contemplating suicide. Research shows that stalking is more likely to lead to physical violence against a woman in the context of intimate partner violence. Indeed, more than half of female homicide victims reported being stalked or harassed by their abusers prior to their deaths. This is possibly why, in response to Counterman, Colorado Attorney General Phil Weiser issued a statement warning: “[T]his decision will make it more likely that victims of threats—mostly women—will live in fear and will be discouraged from speaking out against their stalkers, believing there is little they can do to hold those stalkers accountable.”
Because of the lack of civil remedies available to address such serious misconduct, victims such as C.W. often resort to asking law enforcement to intervene. But the criminal justice system inadequately addresses stalking, and carceral-centered solutions do not actually make victims safer. In fact, victims face an increased likelihood of violence during the days after their abuser is released from jail/prison.
Ironically, the State’s prosecution of Billy Raymond Counterman was a rare example of law enforcement taking measures to protect a victim and successfully prosecute a relentless stalker. Cases like these seldom make it as far. Even in instances where women do report their stalkers, police often take no action to investigate (18.8 percent of reported cases) and only sometimes make arrests (roughly 7 percent of reported cases).
While the new subjective “reckless” standard implemented by the Court may provide a sufficient framework for explicit threats, the underlying facts of Counterman highlight the complexities of evaluating threats that arrive in the context of technology-facilitated stalking–particularly where one determined person uses tech to stalk and harass a target without end.
Requiring that a victim prove her attacker’s state of mind creates a burden that many victims cannot meet. Hypothetically, it also provides a loophole through which a stalker can avoid accountability by claiming that they simply did not know their conduct was unwelcome. In a case where the stalker is particularly delusional, or obsessed to a point beyond reason, this defense could very well work–leaving the victim of stalking without any protection.
Tech Abuse Masked as Free Speech Deserves a Rule of Its Own
This blog post proposes that, by tailoring a rule specific to this type of tech abuse, the Court can protect victims of truly threatening stalking and harassment without compromising the First Amendment rights of individuals and groups whose speech deserves the highest protection. And this can be achieved by applying a test such as the one used in Watts, where the Court considers: (1) the context of the speech; (2) the conditional nature of the threat; and (3) the impact of the speech on the victim/target.
- The context of the speech. This factor considers the full context of the speech that the target perceives as threatening. This is the who and what of the speech.
- The conditional nature of the speech. This factor takes into account the extent to which the threat is explicit or implicit. This is the when, where, and how of the threatening speech. And it takes into consideration that multiple implicit threats–while not specific as to time and place–can amount to threatening speech when taken as a whole.
- The impact of the speech on the victim/target. This factor reinstates a consideration into how the threatening conduct is impacting the victim.
To breathe some life into these three factors, let us apply them to Watts (where the true threats doctrine failed, rightfully) and Counterman (where the true threats doctrine should prevail):
| Watts | Counterman | |
| The context of the speech | Watts, a teenager speaking at an anti-war rally, says “if they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” | Counterman, an adult man, is obsessed with C.W. They had never met, so C.W. did not know what he looked like, but he made it clear through messages that he knew her and even was possibly surveilling or stalking her in real life. |
| The conditional nature of the speech | One statement, hypothetical and hyperbolic in nature, made during an anti-war rally. Directed publicly at an elected official–the President of the U.S. | He sent hundreds of messages over the span of multiple years, some which were innocuous and some that were menacing and implicitly threatening. Counterman lived in proximity to C.W., a private individual. C.W. blocked him on social media, but he continued to contact her by creating new accounts that bypassed the blocking feature. |
| The impact of the speech on the victim/target | Likely, none. It is hard to imagine that President Lyndon B. Johnson felt threatened by Watts. | C.W. changed her daily habits, stopped performing in shows publicly, bought a gun, and experienced severe distress and anxiety. Her personal relationships were affected. |
When compared side by side, it is clear how distinctly different the context and nature of the political speech in Watts, which contained hyperbolic threatening language made publicly at a rally and directed at an elected official, is from the unwanted, relentless, and threatening conduct of Counterman to C.W. Further, the degree of harm evidenced by the third factor highlights the life-changing impact Counterman’s stalking campaign had on C.W., while there was clearly no tangible impact from Watts’ statement on his target (L.B.J.). This comparison highlights how the Court’s analysis of the true threats doctrine overlooked the distinctly different nature of stalking as a specific form of nonconsensual, unwanted conduct that warrants no First Amendment protections.
Looking Forward
The Counterman decision cast a bleak foreshadowing on the potential outcome of another case the Court has announced it will be hearing this term: United States v. Rahimi. Rahimi involves a domestic abuser’s right to bear arms under the Second Amendment. This case stems from the Fifth Circuit, which struck down a federal law that had been in effect for nearly 30 years that prohibited firearms possession by people who are subject to domestic violence protection orders. Unfortunately, the Court’s demonstrated lack of understanding of the experiences of victims of stalking in Counterman likely foreshadows its willingness to protect the rights of abusers over the safety and lives of victims in Rahimi–and underscores the need for a new rule tailored to stalkers who abuse social media.
Annie Seifullah (CUNY Law ‘19) is a civil litigator and anti-violence advocate at C.A. Goldberg, PLLC, a woman-owned, woman-led law firm in Brooklyn that specializes in representing survivors of violence, both online and off. Annie is the co-chair of the New York Cyber Abuse Task Force, a coalition of agencies, attorneys, and advocates working to end technology-facilitated abuse.
Jillian Bowen is a rising 4L evening student at CUNY Law and is working on a forthcoming article on how the law can better address the specific harms of technology-facilitated abuse. She is eager to work in victim advocacy after graduation.