(ReliableNews.org) – The First Amendment to the US Constitution guarantees the freedom of religion, press, assembly, speech, and the right to petition the government — but there are exceptions. The limitations on free speech include defamation, fraud, obscenities, child pornography, incitement, and threats. In August 2022, the case of Counterman v. Colorado asked what defined a “true threat” and whether Counterman’s conviction for stalking Colorado musician Coles Whalen should stand.
On June 27, the Supreme Court ruled by a vote of 7 to 2 that the person making the alleged threat must have at least some understanding that his statements are threatening. If not, the person’s words are a protected part of speech. Justice Elena Kagan wrote the opinion ruling that the “State must show” that the accused knew their words would be taken as threats but said them anyway. The two dissenting justices believe the court may have just opened a loophole in the law.
Chief Justice John Roberts and Justices Samuel Alito, Ketanji Brown Jackson, and Brett Kavanaugh all agreed with Kagan’s assessment. Justices Sonia Sotomayor and Neil Gorsuch agreed with the court’s disposition but not the opinion itself. Justice Amy Coney Barrett filed a dissent, which was joined by Justice Clarence Thomas.
The Supreme Court ruled Tuesday in favor of a Colorado man convicted of making "true threats" who repeatedly sent abusive messages to a local musician. via @NBCNews https://t.co/aStVJKrFtm
— Justia.com (@justiacom) June 28, 2023
The dissent argued that measuring “true threats” by the offender’s intent disregards “delusional speaker[s]” who might be unaware their words are threatening, even though they are and should not be part of protected speech. Even worse, Barrett and Thomas believe clever individuals could falsely claim they didn’t know their words were threatening or hide their intent, giving them a free pass to break the law.
Colorado Attorney General Phil Weiser reacted to the majority opinion, stating the ruling would make it harder to prevent “stalkers from tormenting victims” — typically women. He believes victims will more likely live in fear rather than speak out because offenders could cunningly evade justice by feigning ignorance.
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