Courthouse Steps Decision: Counterman v. Colorado

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Chayila Kleist:  Hello, and welcome to this Federalist Society Webinar call. Today, July 6, 2023, we host a post-decision Courthouse Steps Webinar on Counterman v. Colorado, which was decided last week by the Court.  My name is Chayila Kleist, and I'm an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call, as The Federalist Society takes no position on particular legal or public policy issues. 

 

      Now, in the interest of time, I'll keep my introduction of our speaker today brief. But if you'd like to know more about our guest, you can access his impressive full bio at FecSoc.org. Today, we are fortunate to have with us Kent Scheidegger, who is the legal director of the Criminal Justice Legal Foundation, in which role he has served since December of 1986. His articles on criminal and constitutional law have been published in law reviews, national legal publications, and Congressional reports.

 

      Mr. Scheidegger has a degree in physics from New Mexico State University, where he graduated with honors. And, after getting his degree, Mr. Scheidegger served for six years in the United States Air Force as a Nuclear Research Officer. Additionally, prior to joining the foundation where he currently practices, he practiced civil law in Northern California and was a general counsel in California Cooler Incorporated. And I'll leave it there.

 

      As a last note, throughout the panel, if you have any questions, please submit them via the question-and-answer feature, likely found at the bottom of your Zoom screen, so that they will be accessible when we get to that portion of today's webinar. With that, thank you all for being with us today. Mr. Scheidegger, the floor is yours.

 

Kent Scheidegger:  Thank you. Last Thursday, the U.S. Supreme Court answered a question that it had ducked in 2015 on what mental state the First Amendment requires for a prosecution for threatening speech. By a bare majority, the Court held that a defendant must, at a minimum, have acted recklessly to be punished for speech on this ground. To meet this standard, the prosecution must show, at a minimum, that the speaker is aware that others could regard his statements as threatening violence and delivers them anyway. 

 

The Court reached this decision in a case involving online stalking without addressing the question of whether the true threat exception even needs to be invoked in such cases. Given that stalkers often have mental issues, proving a subjective mental state can be particularly problematic in this context. The question the Court did not answer may be more important than the one it did. Here are the facts of the case.

 

Billy Counterman evidently became obsessed with a Colorado singer-songwriter named Coles Whalen. Ms. Whalen is identified by initials in the opinion, but she filed an amicus brief in the Court using her full name, so I will use it today.  Counterman sent her hundreds of Facebook messages, which became increasingly ominous with time. She tried to cut him off, but he evaded these efforts multiple times by opening new accounts. Among the messages were "F off permanently" and "Staying in cyberlife is going to kill you" and "You're not being good for human relations. Die." Other messages indicated that he was surveilling her, identifying who she was with, and what kind of vehicle she was in.

 

All this caused Ms. Whalen severe anxiety, causing her to lose sleep, cancel concerts with resulting financial loss, and curtail her social life. Counterman was initially charged under two subsections of Colorado stalking law. One of them requires that the defendant have made a credible threat. The other does not mention threats or content of communication at all. Instead, it prohibits certain conduct or communications made in a manner that would cause a reasonable person to suffer serious emotional distress. 

 

The threat count was dismissed before trial, and the case went to trial solely on the second count. Counterman was convicted and sentenced to four and a half years in prison. The First Amendment generally prohibits government restrictions of the content of speech. And any regulation must fit within narrow exceptions to that general rule to be valid. On the other hand, the government has much greater latitude to limit the time, place, and manner of speech if it does so in a way that is neutral as to content.

 

For example, the government can ban sound trucks that roll down the street blasting a message at ear-splitting volume, as long as the restriction is based purely on the volume, and not on the content of the message. Despite this distinction, the state defended its prosecution of Counterman on the basis of the true-threats exception to the content regulation of speech. The Colorado Court of Appeals affirmed, based on a Colorado Supreme Court precedent, that the status of speech as a threat was determined objectively from how a reasonable person would understand the speech, considering the context.

 

Justice Sotomayor, in an opinion concurring in part, and concurring in the judgment, noted, in her words, "The lower court's doubtful assumption that petitioner could only be prosecuted if his actions fell under the true-threats exception," which she did not think was accurate.  She noted that "The prosecution of this kind of repeated and clearly unwanted communication does not present the same kind of danger to free expression that prosecution of individual statements does." 

 

The majority just ignored all that, along with two amicus briefs addressing the issue — one of which was my organization's brief — and decided the case as a true-threats case, based on the way the case was handled in the lower courts. Now, it is entirely defensible for the Court to take the issue as presented by the parties and decided by the lower court. But usually, in such cases, there is a statement to the effect that the Court expresses no opinion on the issues not addressed. 

 

In this case, there is a grave danger to the victims of stalking and other online harassment that the decision would be interpreted as holding that such conduct is protected if it consists entirely of communications that are not threats. That would be a disaster for the victims of cyberstalking. And it may be years before the Court corrects the error. There was a three-way split in the High Court in this case, and the division demonstrates, once again, that the standard labels of liberal versus conservative are oversimplified.

 

Justice Kagan wrote the majority opinion. Justices Alito and Jackson, who are arguably the Court's most conservative and liberal members, both joined. So did the Chief Justice and Justice Kavanaugh, to make a bare majority.  Justice Sotomayor agreed that the lower court opinion should be reversed, but she criticized the majority's recklessness standard as too low in true-threats cases. She was joined by Justice Gorsuch, who tends to be more libertarian than conservative in cases such as this.

 

Justices Thomas and Barrett dissented. They believe that the objective standard for true threats is correct. That is, if a person knows what he said, and a reasonable person would consider what he said to be a threat, given the context in which it is made, then a speaker may be prosecuted without violating the First Amendment. The debate in the briefs and the opinions consist, to a large extent, of going through the various types of content-based regulation that is allowed under Supreme Court precedents. What mental state is required for each? And which one is most closely analogous to the category at issue?

 

The majority adopts the law on defamation of public figures in the famous New York Times v. Sullivan case as its primary model. In 1964, the Warren Court decided that a defamatory statement about a public official that really was false could not be the basis of liability unless the speaker, in the Court's words, "Acted with knowledge it was false, or with reckless disregard of whether it was false or not." The reason for this rule is the need for so-called breathing space to avoid what is called a "chilling effect."

 

Criticizing the government lies at the very heart of what the First Amendment protects. And few people engaged in political speech know the facts to a certainty. If a good-faith criticism that ultimately turns out to be wrong could result in a devastating civil judgment or a criminal prosecution, people would censor themselves, cutting off an important element of public discourse. The Court made a value judgment in Sullivan that some cases of actual defamation will be provided no remedy, in order to protect valuable speech from self-censorship.

 

The cases on incitement go further, requiring a specific intent to incite lawless action. Justice Sotomayor relies on them for saying the same standard should apply to threats. The majority responds that the prohibition of threats does not pose the same danger as the prohibition of incitement. The line between incitement and advocacy is thin. And over the course of history, a variety of groups across the entire political spectrum have faced prosecution for marches and protests.

 

The majority says, "For the most part, speech on the other side of the true-threats boundary line — as compared with the advocacy addressed in our incitement decisions — is neither so central to the theory of the First Amendment, nor so vulnerable to government prosecutions." That is true. But, as Justice Barrett points out in dissent, the same distinction weakens the majority's reliance on the defamation cases. 

 

It is hard to conceive of any speech that is close to the First Amendment's core that requires anyone to come anywhere near making a threat. Even burning a cross at a Klan rally, not directed to any particular person, is not a threat under Virginia v. Black. In the original true-threats case of Watts v. United States, an anti-war protestor joked about assassinating President Johnson. That may come close to the line. But nobody needs to do that to protest a war. A great many people protested the Vietnam War without making anything resembling a threat.

 

The majority says, "An objective standard turning only on how reasonable observers would construe a statement in context would make people give threats a wide berth." That does not seem like such a bad result to me. The majority is concerned that this would discourage uninhibited, robust, and wide-open debate. But the majority offers no specifics on how it would do that. The majority in the dissent read the obscenity cases differently, particularly the Hamling case, each finding support for their position.

 

I think the dissent has the better argument here. The Hamling opinion has some ambiguous wording, but the holding of the case was to affirm a conviction for obscenity in a case where the jury was instructed that the defendant's belief regarding whether the material was obscene was irrelevant. The clearest case of an objective standard came in the "fighting words" case of Chaplinsky v. New Hampshire.

 

In the darkest days of World War II, calling someone a "damned fascist" was deemed to be "fighting words" that would move a reasonable person to respond violently. The majority just brushed off Chaplinsky as obsolete. And maybe it is. There may not be any fighting words in modern society. Yet it is still a Supreme Court precedent. The Court requires lower courts to follow its precedents until they're overturned by the Court itself. And it is unseemly for the Court to brush off its own precedents in such a cavalier manner.

 

In the end, the Court's mode of decisions, they throw back to the Warren Court. There is hardly any mention of the original understanding of what the freedom of speech actually is in the Constitution. A majority weighs the pros and cons, decides what rule it thinks is best for the country, and declares that to be the supreme law, unchangeable by anyone else except by constitutional amendment. But the pros and cons are highly debatable, especially in the stalking context of this case. It remains to be seen how this case will be applied, and how quickly the Court resolves the inevitable split in the lower courts.

 

Well, thank you.  We can go to questions now, if there are any, Chayila.

 

Chayila Kleist:  Yes, indeed. Thank you for that background and the breakdown of the decision, the dissents as well as the concurrences. It's much appreciated. As mentioned, we are moving to a time of Q&A. So, I'll remind our audience, you can submit questions at the bottom of your Zoom screen. We have one already. It's in the context of the distinction the majority, I believe, made, between incitement and true threats. And the questioner asks, "Some states — Florida, for example — require malice in stalking. Do you think that would be enough to distinguish in this case?"

 

Kent Scheidegger:  Yeah, it may be. Malice, at least in the New York Times v. Sullivan case, is exactly what the Supreme Court required. They adopted the Sullivan standard. And Sullivan refers to its standard as actual malice. So that may be, actually, a very good fit.

 

Chayila Kleist:  Got it. How does that interact with the determination that intentional recklessness could be the test here? At least, as put forward by the majority, and criticized in some of the concurrences?

 

Kent Scheidegger:  Yeah, well, recklessness is within the purview of what the New York Times v. Sullivan standard includes as malice. So, in the defamation cases, if somebody makes an allegation against somebody that they think is true but they have been reckless and not taken any steps to verify whether it's true, that would still be actionable under New York Times v. Sullivan.

 

Chayila Kleist:  Got it. You've done this some in your breakdown of the arguments, but could you walk us through some of the distinctions made in the majority opinion between something being a true threat, and then being a prosecutable true threat? I think they laid out some of the --

 

Kent Scheidegger:  Well, they do say that whether something is a true threat is an objective standard. And I think that follows from the Watts case. In the Watts case, the person made a joking threat to assassinate President Johnson. And it was a joke, and everybody there understood it was a joke. And so, the Court said that was not a true threat, without ever getting to a mens rea issue, which is why the issue remained open until last week.

 

      So that can be a true threat or not, based on context, and based on an objective evaluation of the statement.  And then, the Court takes a second step, which says, "In addition to that, the First Amendment requires a mens rea requirement. And that's where they get into the analogy with the defamation cases in Sullivan. So, there is a distinction between a true threat and what can be prosecuted.

 

Chayila Kleist:  Got it. Speaking of the -- you raised some of the other areas that may be impacted by this, and sort of the effect that this case may have. Are there other areas of traditionally unprotected speech that could come to be protected under this assessment of, wow, a possible chilling effect and the way that threats and prosecutable true threats need to be treated separately?

 

Kent Scheidegger:  Well, there is the Court's discussion of the obscenity cases, which, I don't think is an accurate description of what those cases actually said. But it's the second time they've done it, this case and in the Elonis case, previously. So that could change what the standard is for obscenity cases. Most of the other categories, I think, are pretty well laid-out in the existing case law for that category. So I'm not expecting a lot of spillover cases. I don't think they're going to change the standard for incitement. And, in the event that "fighting words" ever comes up again, Chaplinsky is still a precedent. We'll see what happens there.

 

Chayila Kleist:  Got it.

 

Kent Scheidegger:  I doubt that it will, though.

 

Chayila Kleist:  This was referenced a little bit in the question from our audience, but I'll put a spin on it. How could this decision affect the ways that stalking laws are crafted at the state level, and the way prosecutions are sort of undertaken under those laws? Obviously, this is a state law, and the way the prosecution wasn't [inaudible 00:17:24] taking it was also sort of at issue in the case.

 

Kent Scheidegger:  Yeah. The Counterman case actually arose in a kind of a strange way. There were two subdivisions of the Colorado statute, one of which really is a well-written statute. It's got one subdivision that is specifically on threats. And it's got another subdivision that's specifically on manner. And because the case initially included both, I think they got locked into the idea that this had to be threats.

 

But I think it is valid and a good idea to write your statutes that way and specifically break out the two different kinds. And when a case is under the manner portion of the statute, or one that's written like Colorado's, then it should be very clearly based on the manner. To harass somebody by sending 1,000 emails and evading attempts to cut someone off, and implying that you're surveilling them — well, forget the surveilling, just the number and the persistency, and the evasion of attempts to cut off — that should, itself, be actionable, regardless of what the messages say.

 

This case, I think, should have been prosecuted without regard to content. And had it been prosecuted that way, it probably would have resulted in a conviction and never made it to the Supreme Court. But, because of the implication from this decision and the lack of any disclaimer, I think you may have a split in the lower courts as to whether these kind of communication-only stalkings have to be threats in order to be prosecuted.

 

Chayila Kleist:  Got it. And that plays into another question I had. Are there downstream effects from this decision? And what industries or areas of law should be paying attention to those possible indirect effects, given that we now have a decision in this case?

 

Kent Scheidegger:  Certainly, the area in greatest danger is the protection of victims of stalking. And that is a grave concern. As far as other spillovers, well, we'll have to see. I really don't see an immediate effect elsewhere, outside of the ones we've already talked about.

 

Chayila Kleist:  Got it. A question that I will need to find words to put together, on the fact that this is a stalking case, there is -- how to phrase this? Because of the way that the decision comes out for needing a sort of intentionality behind the statements, how is that affected? You mentioned a little bit that its effect -- the types of people who can make these sort of statements. It can be hard to prove a mens rea. How is the fact that it is a digital form of stalking perhaps implicated by this?  What might the ramifications be for the repeated digital contacting of another person given that it can be hard to prove what someone's mental state was when they wrote a blog post or a message or a Facebook contact or whatever?

 

Kent Scheidegger:  Well, the digital stalking is all communication, rather than conduct, so it does raise First Amendment issues that pure conduct wouldn't. If stalking consisted of physically following someone then there wouldn't even be a First Amendment issue. So, there is that aspect of it. The fact that it's online also raises issues about context of speech and what kind of speech is given what kind of meaning in different contexts.

 

And part of the discussion and part of the debate was that in some online forums it's routine for people to say outrageous things. And everybody knows it isn't a serious threat. I’m not entirely convinced of that. I think some people who have carried out school shootings have made those statements in online forums as well. So, there is a context issue there that does affect the First Amendment debate and discussion and how one characterizes a communication.

 

Chayila Kleist:  Got it. Another question from our audience. They note that Counterman was a convicted federal felon. Does that status heighten the fear his posts created? And should it affect the way his statements are treated?

 

Kent Scheidegger:  Well, as matter of fact, in the case, it did. Miss Whalen did look into it a little bit and discovered that he did have a prior conviction, and that heightened the fear level. And that could be an element of context and how a statement is interpreted and whether it would be considered a true threat. 

 

And I think it may have an effect on the level of recklessness that is attributed to a person if he has already been contacted by authorities in another case and admonished not to commit this kind of act and to be put on probation for it. That would lessen any defense that he was only kidding and had no idea it would be considered a threat. It makes such a defense less credible.

 

Chayila Kleist:  Understood. Next question, also from the audience, "How might this decision affect the way investigations in these cases are conducted? What more could investigators or prosecutors need to gather before they bring such a case?"

 

Kent Scheidegger:  I think, anytime you need to prove someone's mental state, it requires additional care in prosecution. Mental state is a difficult thing to prove. The only person who really knows is the defendant. And he won't necessarily tell the truth, if he chooses to speak at all, and can't be forced to speak. So, additional context and additional information needs to be gathered to make that kind of case.

 

It's more difficult for the prosecution. You may want to admonish him first and then see if he continues. That would change the mental state issue and make a stronger case that he knew what he was doing and was acting with, if not intent, then reckless disregard. So, I think it takes more to build a case.

 

Chayila Kleist:  Understood.  Next question. This is for the -- now that we have a decision, sort of looking towards the future. On the facts that we have, what, in your opinion, is likely to be the result on remand?  Was this guy actually reckless?

 

Kent Scheidegger:  Ah, well, that's an interesting question, because the First Amendment issues in this case were never presented to the jury.  They were decided by the trial court and by the court of appeal. And could the court, then, make the finding of recklessness, not by a jury, but in an appellate setting or in a trial court bench setting? Or does this case have to go back for another jury trial?

 

The previous case, the 2015 case, the conviction was, in fact, reinstated, and did not go to another trial.  So you've got issues of, is this harmless error, or would he have certainly been found reckless, had the jury been instructed to that effect?  So, I don't have a simple yes or no to that question. We'll be watching to see what happens.

 

Chayila Kleist:  Got it.  Looking at the effect this may have, are there other charges that prosecutors might bring, instead of the ones brought in this case, given this decision?  Put a different way, the questioner asks, "Are there alternatives that can protect victims?"

 

Kent Scheidegger:  Yeah, that is an interesting question. And I think you'll have to go jurisdiction by jurisdiction to see what charges are available, because, particularly in the online context, this is rather new.  Even stalking laws, although they predate the wide availability of the internet, are relatively new in the law. They're just in the last few decades.  So I think maybe some legislative action is in order.

 

I think the kind of action that Counterman engaged in with the repeated messages and the continuing after cutoff and the evasion of attempts to block him, that should be a crime in itself. It's certainly something the government can, and I believe should, prohibit. So I think there may be some legislative solutions needed.

 

Chayila Kleist:  Got it.  A question returning back to the opinions.  Was there anything — and I'll ask for both sides of the coin — is there anything that you were surprised to see, either in the majority opinion or in any of the others?  And, conversely, is there anything that you were surprised not to see raised in that argumentation?

 

Kent Scheidegger:  Well, the main thing I was surprised not to see in the majority opinion is how little they said about why this is a true-threats case at all.  I mean, admittedly, it was decided that way by the Colorado Court of Appeals.  And that's a good reason to decide on that basis and not some other basis. But the lack of the usual disclaimer, "We express no opinion on the issues not decided" was a surprise.

 

I was also kind of surprised not to see that in the dissent, and maybe a little surprised to see that Justice Sotomayor was the only one who actually discussed it.  This case scrambled the usual lineups, and so that was kind of an interesting twist on the developments.

 

Chayila Kleist:  Got it.  Well, last question, barring any from our audience.  And we can give people back some of their afternoon.  You've mentioned some of this with the -- there could be legislative solutions, and it's going to be a state-by-state.  But now that we have a decision, what are the questions that remain unanswered, if any, after this case?

 

Kent Scheidegger:  The big one being when is a true threat analysis or finding even required?  Fleshing out the specifics of what constitutes recklessness, that's not always an easy thing to say, as to when the person's conduct rises to the level of recklessness. Even in New York Times v. Sullivan itself, you could arguably say that the people involved did act recklessly.  But it calls for some subjective judgment.

 

And we may see some cases fleshing out the scope of how far one has to go, in order to be deemed reckless, because it's not a precise line.  The law now, between this case and Elonis and Virginia v. Black is that negligence doesn't do it, but recklessness is enough. But those are matters of degree, and I think it’s not an easy line to draw.

 

Chayila Kleist:  Got it.  Well, thank you.  Having no more open questions, either from the audience, or from myself, we can wrap there.  On behalf of The Federalist Society, thank you so much, Mr. Scheidegger, for the benefit of your time today.  We really appreciate you taking part of your afternoon. And thank you to our audience for spending part of your afternoon with us.

 

 

We welcome listener feedback by email at [email protected]. And, as always, please feel free to keep an eye on our website and your emails for announcements about other upcoming virtual events.  With that, thank you all for joining us today. We are adjourned.