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
The case arose after Billy Counterman sent hundreds of Facebook messages to a local female musician whom he had never met in person. The messages ranged widely in tone, but some suggested that Counterman was observing the victim’s movements, and a few expressed extreme anger, instructing her to “fuck off permanently” or even to “die.” These messages caused the victim fear and anxiety, and she eventually contacted the police. Counterman was charged under a Colorado anti-stalking statute that criminalized repeated communications that “would cause a reasonable person to suffer serious emotional distress” and that in fact did cause “serious emotional distress.” His Facebook messages formed the prosecution’s entire case. After a jury convicted and a Colorado appellate court affirmed, Counterman took his case to the Supreme Court.
The specific question before the Supreme Court was whether Counterman’s messages could be considered “true threats,” and thus outside of First Amendment protection, when the prosecution did not prove anything about Counterman’s subjective intent in sending the messages. (The Colorado anti-stalking statute contained no explicit mens rea requirement.)
Writing for five justices of the court, Justice Elana Kagan agreed with Counterman that the prosecution needed to prove that Counterman had at least “some understanding of his statements’ threatening character.” Kagan emphasized that whether a statement is threatening is an objective matter that does not depend on the speaker’s subjective intent. Nonetheless, requiring the government to prove some level of subjective intent is still necessary to prevent a “chilling effect” on speech. Without the “strategic protection” of an intent requirement, there would be a danger of widespread “self-censorship,” Kagan wrote.
Kagan further held that the specific level of subjective intent that the government must prove is “recklessness,” which involves consciously accepting or disregarding a substantial risk of serious harm. As such, recklessness is a mental state that lies in between a purposeful or knowing action, on the one hand, and mere negligence, on the other. Because the prosecution had not offered any evidence of recklessness on Counterman’s part with respect to his messages, his conviction was vacated.
Justice Sonia Sotomayor concurred in the decision, joined by Justice Neil Gorsuch. Sotomayor agreed that proof of recklessness was required in Counterman’s case, but that a higher standard (knowledge or purpose) might be appropriate in other cases involving true threats. Separate dissenting opinions were written by Justices Clarence Thomas and Amy Coney Barrett, who both would have allowed the Colorado statute requiring merely an objective test to stand. Barrett was the only justice writing to consider the effect of the decision on restraining orders, the granting of which is technically a civil rather than a criminal matter. She noted that because the decision was about the scope of the First Amendment, “the Court’s holding affects the civil consequences for true threats just as much as it restricts criminal liability.”
Effect on Massachusetts Law
Some commentators on Counterman worried that the Supreme Court’s imposition of reckless intent as new constitutional “floor” under the First Amendment would make prosecution of stalking and harassment cases much more difficult. Of course, the new intent requirement applies only to speech; many stalking and harassment cases involve allegations of actions (like following or surveilling) that would not be subject to free speech protections at all.
In practice, the effect of the Supreme Court’s decision in Massachusetts is likely to be limited. In some contexts, the state’s laws already explicitly impose an intent requirement. The Massachusetts statute against stalking, for instance, contains a specific intent requirement whereby a defendant must “make a threat with the intent to place the person in imminent fear of death or bodily injury.” State courts have held that a Facebook post can constitute a threat under this stalking statute, but by that message “the defendant must intend to place the victim in immediate fear that physical harm is likely to occur.” Similarly, the main way to obtain a civil harassment prevention order under G.L. c. 258E is to establish three or more acts by the defendant that were done with the “intent to cause fear, intimidation, abuse or damage to property.” This is a higher standard than the recklessness requirement imposed by Counterman.
The criminal harassment statute, by contrast, has no specific intent requirement, but instead requires that a defendant “willfully and maliciously engage in a knowing pattern of conduct” that “would cause a reasonable person to suffer substantial emotional distress.” The SJC has held that an act is malicious if it is intentional and without justification, but has been inconsistent on whether this requires a defendant to intend or appreciate the consequences of the act. Because Counterman requires that the defendant consciously disregard a substantial risk of serious harm, it might raise the bar for proving malice under the criminal harassment law. This is relevant not only in criminal cases, but also because a civil harassment prevention order can also issue if a defendant’s conduct constitutes certain crimes, including criminal harassment.
Abuse prevention orders under G.L. c. 209A, which are granted only against family and household members, do not have any intent requirement at all. To obtain an abuse prevention order, a victim must merely establish at least one act of “abuse,” defined in part as “placing another in fear of imminent serious physical harm.” In interpreting this definition of abuse, Massachusetts courts have focused on whether the victim’s fear was “reasonable,” just as the Colorado courts did in Counterman’s case. While it may be the rare case where an abuse prevention order is sought against a defendant alleging that he placed the victim in fear of imminent, serious bodily harm solely through protected speech, in such a case defendants may now argue that evidence of their intent is also required before an abuse prevention order can issue. The state’s law will doubtless continue to evolve in this area as the issue is raised more often and more judges are required to confront it directly.
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