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LINK Billy Raymond Counterman's Words Were So Terrifying the Supreme Court Got Involved

It is dicey constitutional business to criminalize words. The courts have done so only in exceptional circumstances, but on April 19, 2023, the Supreme Court will re-examine the constitutional boundaries for criminalizing words that terrorize. On that date, the Court will hear argument in Counterman v Colorado; the case focuses on the true threats doctrine and the right of speakers to invoke First Amendment protection for speech that puts the target in fear of life or limb.

Beginning in 2014, and over the next two years, Billy Raymond Counterman posted dozens of messages on the Facebook page of a local Colorado musician. The posts, sometimes accompanied by pictures, clearly indicate a man obsessed with his target:

“Was that you in the white Jeep?”

“I’ve had tapped phone lines before. What do you fear?”

“I’m currently unsupervised. I know, it freaks me out too, but the possibilities are endless.”

“How can I take your interest in me seriously if you keep going back to my rejected existence?”

“Fuck off permanently.”

“Your arrogance offends anyone in my position.”

“You’re not being good for human relations. Die. Don’t need you.”

“Staying in cyber life is going to kill you. Come out for coffee. You have my number.”

The artist, identified in court documents as C.W., alerted law enforcement and was granted a protective order against Counterman. Finally, in May 2016, he was arrested. At trial, C.W. testified that she was alarmed by Counterman and afraid that he would injure or even kill her. In fact, she canceled a number of performances because she feared for her safety. In 2021, Counterman was convicted of stalking C.W. and was sentenced to four-and-a-half years in prison.

Counterman appealed his conviction defending his Facebook posts as pure speech, which are protected against criminal prosecution by the First Amendment. The state appeals court found that, in context, the posts indicated Counterman felt entitled to C.W.’s attention not just online but in person as well. Additionally, in his more agitated posts, the court found that Counterman evidenced a disregard for his victim’s life. The state court upheld the conviction and ruled the posts were true threats, unprotected by the First Amendment.

True threats are one of only a very few categories of speech to which the First Amendment offers no sanctuary. The First Amendment requires tolerance of fear and hate. The constitutional philosophy undergirding the First Amendment is that the best remedy to bad speech is more speech. The courts have been careful to allow speakers breathing space so that expression of thoughts and ideas have wide berth in the marketplace of ideas—that they are subject to debate and critique in the hopes that false narratives fail to thrive. Of course, it is a somewhat naive view. In fact, particularly in this era of siloed political communities, hate, misinformation, and disinformation thrive. Still, to punish such expression may not eliminate it; rather, it will often simply drive it underground.

The criminalization of true threat speech is not aimed at crude or offensive speech; it is not directed at vitriolic or hyperbolic speech. True threats are not merely language that intimidates or frightens. In fact, threatening language is often expressed during emotional confrontations, and while it might cause great anxiety or anger in the target, it falls short of terrorizing. The fear produced by a true threat is similar to the fear produced by a physically threatened assault. The target of a person waving a fist, a gun, or a knife will fear for their bodily safety. A true threat breeds the same kind of panic. So too, does the most venomous hate speech.

In Counterman’s final appeal of his conviction, the Supreme Court will have an opportunity to extend guidelines criminalizing true threats so that, at last, constitutional protection will be withdrawn from the most dangerous hate speech. Indeed, the court has supported prosecution against a speaker whose words incite illegal action, provokes another with fighting words, or defames another causing injury to reputation. In these circumstances, particularly when an individual is prosecuted for inciting illegal action, the court has crafted clear guidelines. A speaker can be punished for inciting a riot only if the speaker intended to incite a riot, choosing words that urge a crowd to illegal action in an incendiary situation and the speech is likely to incite the crowd to violence.

Guidelines similar to those used to criminalize speech that incites illegal activity can be applied to criminalize the worst kind of hate speech. Hate speech should be criminalized when the speaker intends to put the victim in fear of life or limb, choosing words that in context are terrorizing and likely to cause panic in the target. Doing so would not lead to big brother government control of expression so that only that which conforms to government orthodoxy enjoys first amendment protection. Instead, an extension of the true threat doctrine would withdraw first amendment armor only from the most heinous speech—that which generates terror. Placing menacing speech of any kind, including bullying, stalking or hate, outside of constitutional safeguards provides balance where little currently exists and offers the constitutional breathing room even to targets of hate so that they too can enjoy democratic liberties.

When speech has reached a level that is not tolerable in a civilized society, failure to delimit or encumber a speaker is more harmful than providing entrance to the marketplace of ideas. So that, when the remedy of more speech to bad speech is unavailable, or when expression is so menacing that its targets, like C.W., cannot enjoy the liberties that democracy provides, the government has the power, doubtless the responsibility, to step in and provide correctives. Terrorizing speech does not add to the marketplace of ideas. Terrorizing speech forces the market to contract. Intimidated targets are not going to participate in the marketplace of ideas for fear that the vitriol is merely the set up to real physical harm or death.

Concerns that, if they fear prosecution, the speech of haters and internet stalkers like Billy Raymond Counterman will be chilled so that they will refrain from tormenting their targets seems to be the whole point. Withdrawing constitutional protection and criminalizing speech that is intended to, and in fact does, elicit terror from the target is logical and fair. And it is about time.

(This decision will have political ramifications in terms of threats to politicians.)

snytiger6 9 Mar 19
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3 comments

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3

Threats should never be protected. And I would advise her to get a gun and the training to use it.

8

Free speech and he thought he was entitled to C.W's attention. No, this is bullying and borders on terrorism. If permitted it simply means we can all do whatever we want to do vocally.

10

Also in dire need of protection from haters: election workers.

And I certainly don't trust the current scotus.

@Beowulfsfriend What legal training do you have that puts you on alert?

@Alienbeing You don't need legal training to see that most of the SCOTUS puts their personal religious values before the people's personal freedom(s).

@snytiger6 Actually one DOES need legal training if one suggests he/she can interpret our Constitution better than Supreme Court Justices. Your accusation about Justice putting their religion above the law is rather baseless. Even Ruth Bader Ginsberg felt Roe V Wade was bad law.

If you can justify your remark, I am all ears.

@Alienbeing It is a matter for interpretation. Unless we can get one or more justices privately saying what they actually think in texts messages, emails, or on a hot mike, we will probably never find definitive proof. Notwithstanding the lack of such evidence, the basic facts of the case do sustain the notion that the Court's "conservative" majority is siding with the religious"right" on the question of abortion. In giving the slightest credence to the idea that a fertilized egg or an embryo is a person they are going along with a religious opinion that is not supported by science. They broke 50 years of precedent to make that ruling. The reasoning given in the majority opinion is laughably weak, and really only serve as a smoke screen. So to opine that the Court is following a religious agenda is not at all crazy.

@Flyingsaucesir When you said "They broke 50 years of precedent to make that ruling", you proved my point. Citing the length of Roe's standing in no way makes the initial ruling good or bad. How many years was slavery legal until ruled illegal? The fact that it took decades to reverse legal slavery did not make the eventual ruling the least bt questionable.

@Alienbeing Uh, no, not really.

@Flyingsaucesir Yes, VERY really. Additionally when you previously said "It is a matter for interpretation" you again proved my point. In law school one is instructed how to analyze and respond to issues in accordance with law. You remember that from law school don't you?

The fact is you are responding using emotion, not legal reason.

@snytiger6 You DO need legal training because you can only assume they made a decision based on any religious value. As I poined out even Ruth Bader Ginsberg thought Roe V Wade was a poorly written and far too broad. She was Jewish, not Catholic.

@Alienbeing It sounds like you have lost track of what we were talking about. 😂

@Flyingsaucesir Not at all, my original post said "What legal training do you have that puts you on alert?"

Since you replied to my post we are talking about what I said.

@Alienbeing I have yet to hear you make a legal argument.

@Flyingsaucesir A legal argument about what?

I am saying that without legal training, interpretation of law can easily be incorrect. The argument to prove that would include examples of mistaken conclusions made by people without a legal background. That would be factual argument, not a legal argument.

The fact that you say " I have yet to hear you make a legal argument." proves you don't recognize the point.

@Alienbeing Yeah it really sounds like that you have lost track of the original proposition. You're stuck on your own little side argument.

@Flyingsaucesir YOU replied to ME. Hence YOU obviously chose to disciuss MY point. The fact that you don't grasp that shows you either can't follow your own conversation, or refuse to admit you are wrong.

Grow up!

@Alienbeing Okay, I see you really can't or don't want to address the original proposition. That's fine. Your surrender is accepted. 😂😂😂

@Flyingsaucesir You childish behavior is present for all to see. It is sad to see an adult act as you did.

Fade away.

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