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Tuesday, June 27, 2023

Supreme Court Settles on Subjective Test for "True Threats" in First Amendment Social Media Case

Today, the U.S. Supreme Court issued a ruling in a Colorado case involving a First Amendment challenge by an individual who had been convicted of stalking for his social media communications. Counterman v. Colorado. We reported on this case previously and the Supreme Court's pending ruling. In today's ruling, the Supreme Court reversed the person's stalking conviction based on its application of a new "subjective" test for determining what constitutes a "true threat" of violence. Since the State had applied an "objective test" in convicting him of the stalking crime that was based on a reasonable person's understanding that the speech was threatening violence rather than the speaker's understanding that its speech was threatening, the case was remanded back to the trial court.

The defendant had been convicted of stalking based on Facebook posts he made about a local musician. The case involved thousands of Facebook posts made from 2014 to 2016, and just a few examples were provided in our previous reporting on this case and more are detailed in the Supreme Court's decision. The Colorado man defended his conduct by arguing that the First Amendment protects speech from government interference even when that speech may be offensive to others. He argued that he could not be held criminally liable for speech that he did not intend as a threat. The State, on the other hand, argued that the proper standard in these cases is whether a reasonable person would see the statements as a "serious expression of intent to commit physical violence," which the State argues it demonstrated in this case.

In the appeal, the Supreme Court acknowledged that "true threats" of violence are not protected by the First Amendment. The Court stated that a true threat is a “serious expression” conveying that a speaker means to “commit an act of unlawful violence.” If an individual's speech constitutes a true threat, the First Amendment would not provide that person with a defense against charges brought because of that speech (in this case, stalking charges). The issue before the U.S. Supreme Court was whether a subjective or objective test should be applied in determining whether the "speech" constituted a true threat. 

The Court ultimately determined that in order for speech to constitute a "true threat," there must be some subjective understanding by the speaker that his speech could be viewed as threatening violence. The Court held that the State must show that the speaker consciously disregarded a substantial risk that his communications would be viewed as threatening violence (i.e., a reckless standard) but is not required to prove any more demanding form of subjective intent to threaten another. Because the defendant's conviction was based on an objective test rather than the Court's new subjective standard, the Court vacated his conviction and sent the case back for further proceedings consistent with its ruling.

This is an important case for governments because the Court has adopted a more narrow test as to when a person's speech might constitute a "true threat" of violence and not be protected by the First Amendment. This case could affect how governments moderate comments on their social media pages, regulate speech at government meetings, and determine when speech might rise to the level of criminal conduct (stalking, for example). Governments may need to review their social media comment and meeting policies as well as discuss this new "subjective standard" with law enforcement to ensure that the government does not overstep when threatening speech is involved.


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