A Colorado free speech case that went before the U.S. Supreme Court on Wednesday could shift the boundaries of what is considered protected by the First Amendment and what qualifies as an illegal threat across the country.
Billy Counterman, a man convicted in 2017 of stalking a Colorado musician, is challenging his conviction on the grounds his unsolicited and unwelcome social media messages were protected free speech.
At stake is the legal definition of a “true threat” — a threat of violence that is not protected by the First Amendment. Currently, the definition varies by state. Some states require judges and jurors to consider the speaker’s state of mind and intent when a threat was made. But other states, including Colorado, consider only the impact of the threat on a “reasonable person,” not the threat-maker’s intent.
“The only issue before us is, are we going to approve of a pure negligence standard that doesn’t take into account any of the intentions of the speaker when we prosecute for speech? That is really the bottom line here,” Associate Justice Sonia Sotomayor said.
Counterman sent as many as 1,000 messages to the musician on Facebook during a two-year span that started in 2014. She ignored his messages and repeatedly blocked him, but he continued to send messages that implied he was watching the woman, was romantically interested in her and was frustrated by her lack of response.
