The Internet is the central forum in our society for expressing ideas. Many of us read or create countless public messages and posts each day on platforms like Facebook, Instagram, Twitter, or TikTok, in addition to private text messages or emails. This activity is generally protected by the First Amendment’s guarantee of freedom of speech. Yet even just a few words on a screen can be terrifying in the context of an abusive family or romantic relationship. Many restraining orders and even criminal charges are based, in whole or in part, on social media posts or electronic communications. What is the right balance between protecting free speech online and protecting victims of harassment and abuse?
Twenty years ago, in Virginia v. Black, the Supreme Court clarified that free speech protections do not apply to “true threats,” which it defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Black involved a statute banning cross-burning. This past June, the Justices returned to the concept of “true threats” in the context of social media in its decision in Counterman v. Colorado. The ruling has complex implications for both victims and defendants in restraining order hearings and criminal cases involving harassing speech.
The Supreme Court’s Decision