Wait…Did the SCOTUS Just Legalized Stalking?
How are people expected to discriminate between actual threats of harm and "jokes" now that the nation's highest court has just handed everyone a license to scream "fire!" in a crowded theater?
According to a recent ruling from the United States Supreme Court (SCOTUS), stalking victims must prove they have legitimate reasons to feel threatened, and the accused stalker must be aware of the impact of his or her threatening behavior.
To muddy the waters even more, the author of the majority opinion was not one of the usual suspects — Justices Thomas, Alito, Roberts, Kavanaugh, Gorsuch, or Barrett — but liberal justice Elena Kagan. The usual suspects joined her, as did Justice Ketanji Brown Jackson. Even the American Civil Liberties Union (ACLU) praised the ruling as a defense of free speech safeguards.
The decision originates with a case out of Colorado, Counterman v. Colorado, in which Billy Counterman was convicted in 2017 for sending years’ worth of repeated threatening messages to Denver singer-songwriter Coles Whalen’s Facebook account.
“You’re not being good for human relations. Die. Don’t need you,” was one.
“Was that you in the white Jeep?” was another.
Despite Whalen blocking Counterman’s messages, Counterman created new accounts and persisted with things like, “Staying in cyber life is going to kill you,” and “Seems like I’m being talked about more than I’m being talked to. This isn’t healthy.”
During the time he was targeting Whalen, he was on supervised release for similar correspondences with other women.
Whalen had no idea who Counterman was, where he lived, or if he was showing up at her concerts.
He could have been in crowd, for all she knew.
Under Colorado law, Counterman was sentenced for causing a “reasonable person” serious distress.
But this is what the justices argued.
Justice Neil Gorsuch told Colorado’s attorney general:
We live in a world in which people are sensitive, and maybe increasingly sensitive. Reasonable people may deem things harmful, hurtful, threatening, and we’re going to hold people liable willy-nilly for that?
Justice Thomas (no stranger to controversy) asked:
Why should these true threats receive more protection than obscenity?
Counterman’s attorney argued the messages were not “true threats” because Counterman never intended any harm toward Whalen. Instead, the messages under question constitute First Amendment-protected free speech.
University of Miami law professor and anti-cyberbullying campaigner Mary Anne Franks blasted the ruling:
Gist of the Counterman decision: the Supreme Court has just decreed that stalking is free speech protected by the First Amendment if the stalker genuinely believes his actions are non-threatening. That is, the more deluded the stalker, the more protected the stalking.
Here is a reasonable question we can hope justices considered: Is anyone looking at possible prison time for a stalking conviction really going to admit in court his or her threats were serious when simply saying he or she was “kidding” would result in an acquittal?
As a teacher, I work in a world where students always say they’re “kidding” whenever they’re caught making threats, racial slurs, inappropriate jokes, or taunts.
It’s a sophomoric defense, no matter whom it’s coming from, and most of us wouldn’t accept it.
Educators and employers are encouraged to take every perceived threat seriously lest it be legitimate, as some are.
Now that the SCOTUS has blown open yet another loophole, will we now see this trickle down into the realm of threats against schools and school personnel, as we have been seeing over the past few years?
Someone could now just say, “Well, I wasn’t really going to kill that school board member. I was just upset over kids being ‘indoctrinated’ into ‘woke culture’.”
A student bully could now claim, “I wasn’t really going to hurt that kid in my class who uses gender non-conforming pronouns. I was only joking.”
Or, “I wasn’t really going to shoot up the school. I was just mad about my grade.”
“I wasn’t seriously going to attack that radio show host. I’m just sick of the ‘liberal bias’.”
“I wasn’t going to hurt that OBGYN. I’m just ‘protecting the unborn’.”
“I wasn’t really going to blow up the library or kill the librarian. I just don’t want kids being exposed to ‘pornographic’ books.”
“I wasn’t really going to kill my member of Congress.”
“Sure, I saw President Obama’s address on social media, but I didn’t think anyone would really go there to try to shoot him.”
“I wasn’t really going to harm that meteorologist. I’m just sick of liberals pushing a ‘climate hoax’.”
How are people expected to discriminate between actual threats of harm and “jokes” now that the nation’s highest court has just handed everyone a license to scream “fire!” in a crowded theater?
Is “I was kidding” going to be an admissible defense in court now?