Justices cross ideological lines in case involving Facebook stalker

Boundaries of First Amendment at issue in this and other legal disputes

Photo by Timothy Hales Bennett, licensed by Unsplash.

The Colorado case involving a man who made threatening statements to a woman via Facebook was decided today by the U.S. Supreme Court on a 7-2 vote that crossed ideological lines, but the courts’ written opinions included more fracturing over the First Amendment than the simple numbers might indicate.

A bare majority, five justices — Elena Kagan (who drafted the opinion), Chief Justice John Roberts, Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson — signed on to the main opinion. Two others, Sonia Sotomayor and Neil Gorsuch — agreed with the result but raised concerns about how the reasoning might be applied to other cases. Amy Coney Barrett and Clarence Thomas joined in a dissent, with Thomas also writing an additional dissent.

The case involved Billy Counterman, who was convicted under a Colorado law that penalizes communicating with another person in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person ... to suffer serious emotional distress.” Counterman had sent numerous messages via Facebook to a local singer he didn’t know personally; many were of a stalking nature without direct threats, while others made statements such as “Staying in cyber life is going to kill you” and “You’re not being good for human relations. Die.” The messages caused the victim severe anxiety, among other symptoms.

Counterman was convicted after a trial; he then appealed on the grounds that Colorado should have been required to show (which it did not attempt to) that he had the intent to threaten. The logic of that argument is that not requiring malicious intent for conviction could allow prosecution for speech that should be protected by the First Amendment, a position that was supported by the American Civil Liberties Union and some free-speech organizations.

The case did not raise issues specific to the religion clauses of the First Amendment. But it had drawn the attention of some advocates of freedom of religious practice, particularly the Alliance Defending Freedom, which urged the Supreme Court in its friend-of-the-court not to decide the case in such a way that could lead to prosecution of speech, including protected religious speech, that some people might find threatening even though it wasn’t intended that way.

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In the end, the majority opinion agreed fully with neither Colorado nor Counterman. The First Amendment can give some protection to a defendant in such a case, the court found, but the prosecution doesn’t need to show that the statements were intended to be threatening, as Counterman had argued. Instead, it is sufficient for the state to show recklessness, that the threats “consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another.” Since Counterman had not been tried under the recklessness standards, the high court sent the case back to Colorado for a rehearing.

This is how the court fractured:

• Sotomayor and Gorsuch, members of the court’s liberal and conservative wings, respectively, saw it as appropriate that the recklessness standards be applied to Counterman. But they were wary that the recklessness standard wouldn’t be appropriate in other cases, particularly ones that involved just speech. In the Counterman case, they noted, it wasn’t just the threatening statements that led to prosecution; it was their repeated nature as part of a pattern of stalking. Using the recklessness standard in situations different than Counterman’s can bring a risk of prosecuting cases involving protected political speech, they said.

• Barrett and Thomas essentially sided with Colorado. There was no question that Counterman’s statements were “true threats,” and there is no need to carve out a First Amendment protection that might exonerate him, the dissent said.

• In his additional dissent, Thomas lambasted the court for its partial reliance on New York Times Co. v. Sullivan, which he sees as flawed. Times v. Sullivan is a well-known decision that makes it more difficult for public figures in libel cases to successfully sue news media.

There is no way to know what influence today’s ruling in Counterman v. Colorado will have in future cases that test the boundaries between free speech and other legitimate government concerns; many of today’s “culture wars” may ultimately be affected by how the high court determines the limits of free speech. Even 303 Creative LLC v. Elenis, the business-vs.-LGTBQ-interests case that will be decided in the next few days, is being legally viewed as a free-speech dispute rather than a religious-rights dispute. And the court cases that are beginning to develop over phenomena such as drag shows and school textbooks also may ultimately be decided on free-speech grounds.

Counterman v. Colorado was decided on grounds specific to that case, but it is noteworthy that the results didn’t show a clear right-left divide. We might expect Barrett and Thomas to team together to differ with the majority in a case, but Sotomayor and Gorsuch? Or for that matter, would we normally expect Kavanaugh and Alito to sign onto a decision written by Kagan in a constitutional dispute? In this court term, we’ve seen several cases where the court’s liberals and conservative haven’t acted as blocs, and today’s ruling gives some hope that the addition of three Trump appointees to the high court doesn’t lead to the conservative majority consistently voting in lockstep.

1. The ADF, which gets most of its support from conservative causes and religious organizations, did not side with either Counterman or Colorado. Several of the cases it cited in its brief involved college students who received restraining orders after engaging in religious speech that would not typically be understood as personally threatening, although it was understood that way by some listeners.