How Do We Know When a Threat Has Been Made?
COUNTERMAN V. COLORADO
Words are at the heart of what is protected by the First Amendment.
However, all words are not protected by the First Amendment. The challenge is in separating the speech protected by the First Amendment and the speech that is unprotected.
This case involves the issue of when speech enters the realm of a threat and is unprotected by the First Amendment.
Black’s Law Dictionary defines ‘threat’ as ‘a communicated intent to inflict physical or other harm on any person.’� �Even though threats involve communication, they are not protected by the First Amendment. The question is, how do we determine when a threat has been made?�
In Virginia v. Black (2003), the Supreme Court stated that “true threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.”��The question is whether Counterman involved a true threat.
In 2014, William Ray Counterman began sending Facebook messages to a singer/songwriter named Coles Whalen.
Backbeat Seattle
For over two years, Counterman sent Whalen thousands of unsolicited messages. When she would block him or change accounts, Counterman would find her and continue the messages. �
www.Westword.com
Some of the messages were benign, such as offering tomatoes from his garden. ��Some of the messages demonstrated he was following her, describing where she went and who she was with. �
At the end, the postings took on an even more ominous tone:�
Coles Whalen was so frightened that she ultimately stopped performing, gave up singing, and moved away from Colorado.
www.collectedsounds.com
William Ray Counterman was convicted of stalking in 2017 and sentenced to four and a half years imprisonment.�
Inmate Aid
Counterman appealed, arguing that his speech did not amount to a true threat, since it was not his intention to threaten Coles Whalen.��Counterman’s position was that since his communications with Coles did not constitute a threat, his conviction for stalking should be overturned.
Colorado Springs Gazette
The State of Colorado responded that Whalen was frightened, and her life disrupted. ��For the State of Colorado, what Counterman intended did not matter. What mattered was the effect his speech had on Whalen.�
�The Colorado appellate court upheld the conviction, ruling that courts should apply an objective test: Whether a reasonable person, given the facts and circumstances, would regard the statement as a threat of violence.�
Counterman appealed to the U.S. Supreme Court. He argued that while his speech may have been offensive or annoying, it was not threatening.
The issue in this case is whether speech is a true threat only when the speaker intends it as a threat or is it enough for the government to show that a reasonable person would find it threatening?
Counterman made a number of arguments in support of his position that the government should be required to prove an intention to threaten in order to establish a true threat.�
Inmate Aid
Counterman argued that if intention is not required to be proven, we may criminalize misunderstandings, even where there is no intention to threaten.
Counterman pointed out that even the trial court judge seemed to be sympathetic, “calling Counterman’s statements ‘delusional’ and saying he thought most people would give Counterman the benefit of the doubt that he is doing it through a lack of understanding, as opposed to a malicious intent.”�
Counterman argued that the potential for misunderstanding is great in our modern age, where so much communication occurs on social media. In the social media environment, strangers come together and interact with little or no experience with the other person.
www.etutor.com
Under such circumstances, it is easy for people to misunderstand. A person may perceive a threat when none was intended by the speaker.�
www.etutor.com
Counterman suffered from mental illness, which interfered with his ability to accurately understand how his messages were being perceived. He didn’t know Whalen was alarmed by his communications. �
Colorado Springs Gazette
Counterman also argued that if the court adopts a rule in which a threat can be established without establishing the intent to threaten, then the danger of punishment (including prison) will have a chilling effect on speech.� �
This is especially true for members of unpopular political groups and minorities, whose beliefs differ from the police, prosecutors, and jurors who will determine whether a threat may be presumed. These individuals will choose not to speak for fear of the reactions of others.
Counterman argued that when we allow the overreaction of the hypersensitive to silence speakers, freedom is placed at risk. This is not the situation the First Amendment was designed to bring about.�
Pemptonsia.com
Counterman’s Arguments
What do you think of the arguments offered by Counterman? ��Which argument is most convincing for you? ��Least convincing?�
�The State of Colorado made a number of arguments in support of its position that the courts should use an objective test: Under the circumstances, would a reasonable person regard the statement as a threat?�
The State of Colorado contended that courts should look beyond just intention. Proving that a speaker intended to threaten is difficult.
Very few people announce to others, or write in their journals, that they are going to embark upon a pattern of behavior with the objective of threatening someone. �
As the State of Colorado pointed out, police and prosecutors “have to wait a lot longer for the evidence to build up.” ��During this time, the terrorization of the victim can continue.�
Aceusis.blogspot.com
The State argued that speech that is threatening in nature was not why the First Amendment was included in the Constitution. Such speech contributes little or nothing to what Justice Holmes characterized as “the marketplace of ideas.”
fixquotes.com
As the State argued in its brief, “Not only do stalking and other threats not contribute to the marketplace of ideas, but they deplete the marketplace of ideas by placing victims in reasonable fear for their lives, thereby chilling their speech. ��Threats and stalking cause victims to curtail their activities and withdraw from public life, resulting in a net decrease in the amount of available speech.”�
The State also contended that a requirement of proving an intention to threaten will serve to immunize stalkers who have experienced a break from reality. They do not realize the threatening quality of their statements.
However, just because the delusional speaker does not recognize the threatening nature of their statements does not mean the listener or reader will be any less intimidated or terrified.
If the intention to threaten must be proved, then stalkers and ‘trolls’ have a ready-made defense. They can simply assert that they meant nothing threatening in their statements, or they were just kidding.
Such a situation is doubly dangerous. Not only is the victim terrified, but the person responsible is free to continue the terrorization, or to search out new victims.
Coles Whalen submitted a brief to the U.S. Supreme Court, in which she urged the Court to adopt the reasonable person approach. She warned against the consequences of requiring intent, writing …
Spotify.com
…“In addition to preventing States from punishing delusional stalkers, adopting Counterman’s position would also create a dangerous roadmap that would enable devious stalkers to inflict terror with impunity. To evade prosecution, a devious, sophisticated stalker need only intersperse his threats with purportedly delusional messages.”�
Spotify.com
The State of Colorado also dismissed the hypersensitive listener example as a ‘straw man’ argument. A threat will not be based solely on the listener’s reaction. The totality of the evidence must support the conclusion of that a threat existed.
This approach, the State argues, “protects political hyperbole, art, other valuable expression, and even poorly chosen words, by requiring that the entire context be considered.”
State of Colorado’s Arguments
What do you think of the arguments of the State of Colorado? ��Which argument is most convincing for you? ��Least convincing?�
�If you were on the Supreme Court of the United States, would you rule for Counterman and his position that speech is a true threat only when the speaker intends it as a threat, or the State of Colorado, which argues that it is enough for government to show that a reasonable person would experience the speech as threatening? �Why would you rule this way?�