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Justices Reverse Stalking Conviction In Case Examining 'True Threats'

The Supreme Court imposed a less-stringent test for when speech constitutes a “true threat” that violates the First Amendment on Tuesday. Justices sided with a man convicted of stalking in a decision that critics suggest could make it harder to prosecute alleged stalkers and abusers.


Some civil rights groups cheered the ruling as necessary for freedom of speech, Forbes reports.


The court ruled 7-2 in favor of Billy Raymond Counterman, who was convicted in Colorado of stalking after sending repeated messages to female musician Coles Whalen that made her fear for her safety, including ones that suggested he knew her whereabouts and told her to “die” and “F–k off permanently.” Counterman was convicted based on a test that considered whether a reasonable person would believe his comments constituted “true threats”—which, unlike most speech, aren’t protected by the First Amendment. His attorney argued that the Supreme Court should instead impose a subjective test that takes the speaker’s intent into account, because Counterman didn’t intend to threaten Whalen.

Colorado defended Counterman’s conviction and said the objective test for determining what makes a “true threat” should stay. The state said that changing the standard would “enable more harm” and lead to situations like “allow[ing] devious stalkers to escape accountability by insisting that they meant nothing by their harmful statements.” The court majority ruled that for speech to be considered a “true threat,” there has to be some demonstration that the speaker “had some subjective understanding of his statements’ threatening nature.”

The opinion was written by Justice Elena Kagan. Justices Clarence Thomas and Amy Coney Barrett dissented.


Counterman was arrested in May 2016 and sentenced to four-and-a-half years in prison. An appeals court upheld his conviction. The Supreme Court took up the case after considering a similar one called Elonis v. United States in 2015, which concerned a man who posted rap lyrics on Facebook with threats against his wife, coworkers and others, but claimed he did not do so with intent to threaten. The court overturned that conviction, but did not fully answer the question of when statements rise to become “true threats.”


In Tuesday's ruling, the court said "the question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements. We hold that it does, but that a mental state of recklessness is sufficient," said Kagan. "The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another." ”

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