Earlier in the week, the US Supreme Court announced its decision in the Counterman vs. Colorado First Amendment case, which observers say resulted in setting a higher bar for punishing speech as “a true threat.”
If this judgment is anything to go by, going forward it will be very difficult to sentence people to multiple years in prison based on their social media posts - unless “true threat” from those posts is proved according to a substantially higher criteria that was the case up until this point.
At least a part of the civil rights advocate community sees the ruling as by and large a positive development, since it is expected to discourage prosecutors from criminalizing speech the way this has been done up until now.
Among those voicing positive comments is the Foundation for Individual Rights and Expression (FIRE), whose senior attorney, Jay Diaz, spoke in precisely these terms to comment on the decision, and recalled that the group had filed an amicus brief in the case and that the court has now accepted their argument saying the state of Colorado’s objective standard, as stated, were not valid.
Instead, the Supreme Court expressed its stance to say that if convictions are to be based on “true threat” - then, there must be proof that the defendant “consciously disregarded a substantial risk that their speech would place another in fear of serious physical harm.”
The ruling’s legal outcome was to all intents and purposes the court throwing out the previous conviction Billy Raymond Counterman of Colorado, who was originally sent to prison for 4.5 years because of his Facebook posts seen as being directed against his fellow Coloradan, Coles Whalen, a musician, eventually qualified as a case of stalking.
The justices, however (7 in favor versus 2 against) found that the legal “test” that the court who convicted him chose to go by was not appropriate - i.e., legal - and that instead of Counterman expressing “true threat” - it was his First Amendment rights that were violated.
“True threat,” by the way - obviously, if proven - is one of the (rare) exceptions that effectively annul those US constitutional speech protections contained in the First Amendment.
The Supreme Court based its decision on finding that the lower instance court went about the case the wrong way in determining the veracity of the serious accusations - accusing it, as it were, of having made a mistake of pandering to the laypeople’s perception of what true threat actually is.
And that would be - opposed to legally and soberly examining where prosecutors who handled the case did or did not prove that Counterman’s threats were made in such a way that was “reckless” - i.e., that he was aware Whalen would understand his online speech as actual threats to her person.
And producing that proof - is what the First Amendment requires.
The entire affair is murky and dramatic enough - the result of Counterman’s messages on Facebook apparently sent the aspiring musician straight to the East Coast - pretty much because of the Facebook messages.
And that’s because, according to Whalen - they got ever more “creepy and weird.”
Whalen alleged that her mental health took a hit when some of those Facebook messages took the turn for the worse - allegedly, according to the filing, “to threaten her life.”
The First Amendment issue notwithstanding - how about Whalen, before departing for the East Coast taking full use of the Second Amendment, that allows her to bear arms. (It’s unclear how well that was actually received “on the East Coast” - unless in the unlikely case we’re talking about the artist relocating to New Jersey /s.)
All joking aside - this seems to have been a case of a person interacting with fans online, and that ending up in genuine distress.
But was it enough to send a person to 4+ years in prison?
The Supreme Court is now saying - that “feeling” is not enough to take away anyone else’s constructional rights.
And here, the objective standard of Colorado was simply - substandard.
“FIRE and other civil liberties organizations had also advocated for an even stricter First Amendment test beyond recklessness to ensure that Americans would not face prosecution for parody or political commentary that unintentionally seemed threatening to a 'reasonable person,” said Diaz, adding:
“While the (Supreme) Court did not adopt the stricter standard, we are heartened by the Court’s statement that hyperbole will not constitute a true threat and that recklessness sets a high bar for any prosecution.”
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Sorry about that.
The Article
Earlier in the week, the US Supreme Court announced its decision in the Counterman vs. Colorado First Amendment case, which observers say resulted in setting a higher bar for punishing speech as “a true threat.”
If this judgment is anything to go by, going forward it will be very difficult to sentence people to multiple years in prison based on their social media posts - unless “true threat” from those posts is proved according to a substantially higher criteria that was the case up until this point.
At least a part of the civil rights advocate community sees the ruling as by and large a positive development, since it is expected to discourage prosecutors from criminalizing speech the way this has been done up until now.
Among those voicing positive comments is the Foundation for Individual Rights and Expression (FIRE), whose senior attorney, Jay Diaz, spoke in precisely these terms to comment on the decision, and recalled that the group had filed an amicus brief in the case and that the court has now accepted their argument saying the state of Colorado’s objective standard, as stated, were not valid.
Instead, the Supreme Court expressed its stance to say that if convictions are to be based on “true threat” - then, there must be proof that the defendant “consciously disregarded a substantial risk that their speech would place another in fear of serious physical harm.”
The ruling’s legal outcome was to all intents and purposes the court throwing out the previous conviction Billy Raymond Counterman of Colorado, who was originally sent to prison for 4.5 years because of his Facebook posts seen as being directed against his fellow Coloradan, Coles Whalen, a musician, eventually qualified as a case of stalking.
The justices, however (7 in favor versus 2 against) found that the legal “test” that the court who convicted him chose to go by was not appropriate - i.e., legal - and that instead of Counterman expressing “true threat” - it was his First Amendment rights that were violated.
“True threat,” by the way - obviously, if proven - is one of the (rare) exceptions that effectively annul those US constitutional speech protections contained in the First Amendment.
The Supreme Court based its decision on finding that the lower instance court went about the case the wrong way in determining the veracity of the serious accusations - accusing it, as it were, of having made a mistake of pandering to the laypeople’s perception of what true threat actually is.
And that would be - opposed to legally and soberly examining where prosecutors who handled the case did or did not prove that Counterman’s threats were made in such a way that was “reckless” - i.e., that he was aware Whalen would understand his online speech as actual threats to her person.
And producing that proof - is what the First Amendment requires.
The entire affair is murky and dramatic enough - the result of Counterman’s messages on Facebook apparently sent the aspiring musician straight to the East Coast - pretty much because of the Facebook messages.
And that’s because, according to Whalen - they got ever more “creepy and weird.”
Whalen alleged that her mental health took a hit when some of those Facebook messages took the turn for the worse - allegedly, according to the filing, “to threaten her life.”
The First Amendment issue notwithstanding - how about Whalen, before departing for the East Coast taking full use of the Second Amendment, that allows her to bear arms. (It’s unclear how well that was actually received “on the East Coast” - unless in the unlikely case we’re talking about the artist relocating to New Jersey /s.)
All joking aside - this seems to have been a case of a person interacting with fans online, and that ending up in genuine distress.
But was it enough to send a person to 4+ years in prison?
The Supreme Court is now saying - that “feeling” is not enough to take away anyone else’s constructional rights.
And here, the objective standard of Colorado was simply - substandard.
“FIRE and other civil liberties organizations had also advocated for an even stricter First Amendment test beyond recklessness to ensure that Americans would not face prosecution for parody or political commentary that unintentionally seemed threatening to a 'reasonable person,” said Diaz, adding:
“While the (Supreme) Court did not adopt the stricter standard, we are heartened by the Court’s statement that hyperbole will not constitute a true threat and that recklessness sets a high bar for any prosecution.”
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It’s sad someone’s striving for a low bar to convict someone to prison. For affecting someone’s feelings, no less.