Court reviewing just what constitutes a ‘threat’ on social media

The Supreme Court has agreed to hear a case involving just exactly what constitutes a “threat” on social media.

Originally published at WND News Center. Used with permission.

But the legal experts at the Rutherford Institute have warned that the wrong result could give the government virtually unlimited power to criminalize political speech.

The case at hand comes out of Colorado, which in recent years has been scolded by the high court for its antipathy for the Christian faith.

According to Rutherford, the case is Counterman v. Colorado, through which, its lawyers argue, permission could be given for “the government to use overly broad stalking laws to treat expressive activities on social media as true threats, which are not protected by the First Amendment, without having to prove that the message are both reasonably understood and intended to threaten an illegal act.”

“The government must not be given the power to criminalize speech it deems distasteful or annoying,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People.

“Nowhere in the First Amendment does it permit the government to limit speech in order to avoid causing offense or hurting someone’s feelings, protect government officials from criticism, discourage bullying, penalize hateful ideas, combat prejudice and intolerance, and the like.”

Rutherford explained that under Colorado’s “stalking” law, “a person can be charged with stalking for repeatedly contacting, surveilling or communicating with an individual in such a way that a reasonable person would feel serious emotional distress.”

It explained, “In June 2020, the Colorado Supreme Court established new criteria for distinguishing between threatening and protected speech in a social media age. The court recognized that ‘social media…magnify the potential for an innocent speaker’s words to be misunderstood’ and that ‘a listener’s subjective reaction, without more, should not be dispositive of whether a statement is a true threat,’ which the court defined as ‘a serious expression of intent to commit an act of unlawful violence.’”

The organization noted, “The ruling stated that when an alleged threat is communicated online, courts should consider both the words and the context, factoring in the statement’s role in a broader exchange. However, the court declined to consider whether a speaker must have a subjective intent to actually threaten the recipient.”

The specific case involves Billy Counterman, who in 2016 was charged with stalking for sending Facebook messages to a Denver musician’s accounts over the course of 24 months.

“Although none of the messages explicitly threatened any illegal act or harm, the musician interpreted the messages as threats and sought a protective order against Counterman. Counterman was subsequently found guilty of stalking and sentenced to 4.5 years in prison,” Rutherford said.

But Counterman’s appeal charged Colorado law does not require speech to be a true threat in order to be criminally punished.

Rutherford, in a friend-of-the-court brief, warned that “while protecting people from stalking is certainly a valid concern and may be warranted in this particular case, such a broad-reaching law could empower the government to misinterpret any speaker’s intent and meaning in order to criminalize legitimate political speech that is critical of government officials and representatives.”