The Supreme Court on Tuesday ruled in favor of a Colorado man convicted of making “true threats” who repeatedly sent abusive messages to a local musician.
The court said that Billy Counterman‘s conviction for sending Facebook messages to singer-songwriter Coles Whalen was based on the wrong legal standard.
On a 7-2 vote, the justices ruled that the jury should have been required to make a finding about whether he intended his comments to be genuine threats. If such messages are not true threats, they are deemed protected speech under the Constitution’s First Amendment.
The case now returns to lower courts for further proceedings on whether the conviction should be thrown out.
“The state had to show only that a reasonable person would understand his statements as threats,” Justice Elena Kagan wrote for the majority. “It did not have to show any awareness on his part that the statements should be understood that way. For the reasons stated, that is a violation of the First Amendment.”
Conservative Justice Clarence Thomas and Justice Amy Coney Barrett dissented.
Barrett wrote that by finding that speakers only lose constitutional protections if they have some kind of subjective knowledge that the language is threatening, the court “unjustifiably grants true threats preferential treatment.”
Counterman’s lawyers asked the court to limit the definition of a true threat to situations in which a defendant intended to threaten a person. Some lower courts have reached that conclusion, while others have said prosecutors have to show only that a “reasonable person” would consider a message to be a threat.
In a brief backing Colorado, 25 states urged the justices to give them leeway to prosecute without imposing an intent requirement, saying it can help to curb threatening conduct before it leads to violence.
The case is a sequel to a 2015 ruling in which the court threw out the conviction of a Pennsylvania man who made threatening remarks on Facebook aimed at his ex-wife. That case was decided on relatively narrow grounds and did not reach the broader constitutional question raised by Counterman.
In Counterman’s case, prosecutors focused on messages he sent to Whalen on Facebook for two years starting in 2014. Examples included “I’ve had tapped phone lines before, what do you fear?” and “You’re not being good for human relationships. Die. Don’t need you.”
Whalen, who has said the messages were “weird” and creepy,” did not respond to any of them and ultimately reported them to the police in 2016, according to court documents. Counterman was convicted of one count of stalking and sentenced to 4½ years in prison. The conviction was upheld on appeal, prompting him to ask the Supreme Court to intervene.
Lawyers for the state said in court papers that Counterman’s conviction rested not purely on the messages but also on what they characterize as his admission that he had carried out surveillance of Whalen. In one message, he referred to a white Jeep she drove, and in another, he said he had seen her out with her partner. Counterman’s lawyers say the state has no evidence aside from the messages to suggest that he spied on Whalen.
