Courthouse Steps Oral Argument: Counterman v. Colorado

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Jack Derwin:  Hello, and welcome to this Federalist Society virtual event. My name is Jack Derwin, and I’m Associate Director of the Practice Groups here at The Federalist Society. Today, we’re happy to host a “Courthouse Steps” discussion on yesterday’s Supreme Court oral arguments in Counterman v. Colorado, featuring Mr. Kent Scheidegger.

 

            Kent has been the Legal Director of the Criminal Justice Legal Foundation since December of 1986. His articles on criminal and constitutional law have been published in law reviews, national legal publications, and congressional reports. Legal arguments authored by Kent have been cited and incorporated in several precedent-setting United States Supreme Court decisions. 

 

            Previously, Kent served for six years in the United States Air Force as a Nuclear Research Officer, and he graduated with distinction from the University of the Pacific, McGeorge School of Law. In the interest of time, I’ll stop there. You can view Kent’s full bio at fedsoc.org.

 

            After Kent’s presentation, we’ll go to audience Q&A, so please enter any questions for him into the bottom right of your Zoom window—there would be a Q&A box down there. Finally, I’ll note that, as always, all expressions of opinion are those of the guest speaker joining us today. With that, Kent, the virtual floor is yours.

 

Kent Scheidegger:  Thank you. Yesterday, the United States Supreme Court heard oral argument in the case of Counterman v. Colorado. The question presented is the constitutional standard for a true threat under the First Amendment’s threat exception for content-based regulation of speech. But because the case arises in the context of a prosecution for stalking, it raises concerns about whether the answer to that question will impair the state’s ability to protect victims of stalking and to intervene before the stalking escalates to physical assault.

 

            Counterman used Facebook to cyberstalk a Colorado singer-songwriter, referred to as CW in the brief’s lower-court decision, although in the Supreme Court, she has appeared as an amicus curia under her full name, Coles Whalen. Ms. Whalen felt she needed to be on Facebook and accept friend requests from fans to build her career. Counterman sent her over a thousand messages over a couple of years. She tried to cut him off multiple times, but he evaded the cutoffs by opening new accounts. The messages became increasingly ominous, including the statement, “Die,” and, “Staying in cyberspace is going to kill you.”

 

            Colorado’s stalking statute has three variations. Counterman was originally charged with two—one of them based on credible threats and the other, which is not. The threat charge was dismissed before trial. The statute for the count that went to trial says in part, “A person commits stalking if, directly or indirectly through another person, the person knowingly, repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person to suffer serious emotional distress.”

 

            On its face, this statute is a regulation of manner and not content, so one would expect the threshold question to be whether the requirements for content-based restriction apply at all. The First Amendment standard for time, place, and manner regulation of speech is much more relaxed. However, this is not addressed in the lower-court opinion and was not a major issue at the argument, although it was addressed in two amicus briefs—one of them by my organization.

 

            The state appears to concede that a content-based restriction is involved. Counsel for Counterman said it was content-based because the emphasis at trial was on the threatening content of the communications, and the state did not challenge that statement. So arguably, this case involves a content-based restraint as applied, even though the statute generally is not content-based. Even so, I do hope the Court does expressly state in its opinion that it is not holding that a threat requirement must be made in all stalking cases. Any such implication from the high Court would be catastrophic for the victims of stalking. Stalking causes grave harm for its targets, even if the communication does not contain threats, and all or nearly all states have enacted statutes to protect people, both through civil restraining orders and criminal prosecutions.

 

            The principal issue is whether there is a constitutionally required element of a mental state of the defendant regarding the threatening nature of the communication or whether it is sufficient that he knew what he said and that a reasonable person will regard what he said as a threat, considering the context in which it is made.

 

            There are different requirements for different types of content-based restrictions that are allowed. A defamation suit by a public figure requires at least reckless disregard of the truth. Fighting words, on the other hand, require only speaking words that are objectively viewed as likely to start a fight. Incitement to violence requires at least knowledge. Obscenity has, in the past, only required knowledge of the material, not knowledge that it is legally considered obscene, although dicta in the Court’s most recent opinion, Elonis v. United States, puts a different spin on that.

 

            Counsel for defendant argued that incitement to violence was the closest analogy to threats, though it is not clear why that is closer than fighting words, which the state relies on. The choice may turn on how much breathing space the Court perceives is needed for speech that is close to a threat. Justice Kagan asked if speech that is close to the threat line has any value that needs protecting, which is a good question.

 

            The defense relies on anecdotal evidence of cases where people were arrested for online comments that do not appear to be threats in context. One man was arrested for making a comment about pressure-cooker pots at a public event, “A tasteless illusion to the Boston Marathon bombing,” which was understood to be a joke by another commenter. However, it is not clear that the defense -- the standard the defense wants would have protected this man from the pre-trial detention that caused him harm. Any standard could be misapplied, especially pre-trial.

 

            If the Court does adopt a mental-state requirement, there is little chance that it will use the traditional terms of specific versus general intent, which we see in many cases. In that event, the Court would almost certainly go with the model penal code breakdown of purpose, knowledge, recklessness, or negligence. In Elonis, Chief Justice Roberts characterized the objective standard as a negligence standard, which he considered inadequate, and he would most likely have the majority for that again.

 

            In a concurring opinion in Elonis, Justice Alito argued that recklessness was sufficient, and he pressed defense counsel on that again in this case. Defense counsel did not have a particularly good response, in my opinion. He said that the convictions in Virginia v. Black could have been upheld on a recklessness standard—particularly the defendant who burned a cross on his neighbor’s lawn—so that standard must be incompatible with Black. But in fact, that conviction was vacated and remanded for severability, not reversed, and it was reinstated on remand. So there actually is no incompatibility.

 

            One problem with the reasonable person standard that did come up in the argument is the difficulty of defining a reasonable person in different contexts. Is it the reasonable person by the standards of society as a whole, or is it the norm in the particular venue, whether it be a college campus, an online chat room, or whatever? There was no good resolution of that question.

 

            The solicitor general -- his amicus supporting the state, emphasized that the practical impact of a subjective mental state requirement on stalking laws and protection of victims was at issue. The SG noted two common kinds of stalkers, the delusional and the clever. Many stalkers are a brick shy of a full load and actually believe that they are in a relationship with the target, despite unequivocal rejections. Additional time would be needed to gather evidence to show that the stalker is not only acting in a threatening manner but actually knows he is doing so, and the stalking and the risk that it will escalate to actual violence go on in the meantime.

 

            The clever stalker will make veiled threats that are every bit as harmful to the victim but allow the stalker to claim that he didn’t really mean it that way. When coupled with the requirement of proof beyond a reasonable doubt in criminal cases, this could be a formidable barrier to effective enforcement. The SG noted that Elonis himself—the defendant in the prior case—had returned to threatening people after his case, choosing his words in ways designed to give him an out. The defense claimed that it’s a proposed standard but only apply to criminal cases, not civil cases. But it is hard to see any support for that in First Amendment law. Justice Kagan noted that the landmark case in New York Times v. Sullivan rejected exactly that distinction.

 

            This case will likely be decided by the end of the term in June or July. We’ll have to wait and see if the Court emphasizes breathing space for speech or the protection of the victims of stalking, as well as whether it limits its opinion to cases that involve actual regulation of content of speech.

 

            Thank you, and we can go to questions now.

 

Jack Derwin:  Thank you very much, Kent. As I noted, audience, you can ask questions using the Q&A function at the bottom right of your Zoom window. As we wait for some questions to come in, Kent, I have one of my own. I’m curious here. It seems like this case, and others like it, are brought on, at least somewhat, by the extent to which our society has moved to digital communication. Can you speak a little bit about how that plays into this case and whether that --

 

Kent Scheidegger:  That is true. People tend to be more vehement and less civil online. I think we have all noticed that over the years. And the differing context of online communication was an important consideration in the argument, particularly the fact that online communication generally does not involve visual face-to-face—although, actually, we’re visual now—that some of the cues that clarify meaning of words may be absent in online communication, and there is greater chance of misunderstanding.

 

Jack Derwin:  Right. That would seem to make it even trickier to get at the [inaudible 10:38] aspect. We have one question here. Are the problems with the reasonable persons standard any different in this context than any other area of law?

 

Kent Scheidegger:  I’m not sure that it’s different in other areas of law. I think the concern was that it is becoming increasingly difficult -- as time goes on and we develop into more and more niches of society, there’s concern that, in some areas, what would be considered hypersensitive in other contexts may be normal in some. The idea of college campuses came up and the number of people who are all concerned about being triggered and so forth. So the reasonable person standard has always been somewhat problematic, but it is probably more so in society today than it used to be.

 

Jack Derwin:  We have a few more questions coming in. How would Chaplinsky go today under any of these standards? Those fighting words, Kent, would be tame, tame, tame in today’s world.

 

Kent Scheidegger:  Yeah, it would. And I’ve wondered about Chaplinsky. It talks about words that would make -- that would provoke a reasonable person to violence. Are there any words that, in today’s society, would provoke a reasonable person to violence? I think the standard of -- or at least the norm of what would cause you to actually hit somebody in response to words is different today than it was in Chaplinsky’s day. “Damned fascist” was enough to provoke a person to violence at the time Chaplinsky was decided. I get called that often, [laughter] and I haven’t hit anybody yet. Sometimes I’ve wanted to, but I haven’t done it.

 

Jack Derwin:  Sort of, along some other lines, we have a question. Justice Gorsuch noted how many people claim they suffer physical harm from speech and thus seem to express concern that political speech might be suppressed under some misguided standard. Do you think that’s something to worry about?

 

Kent Scheidegger:  I think the parties in this case were very explicit that we only talk about --we’re only concerned with physical violence, and the idea of someone suffering some kind of psychosomatic injury is not what we’re talking about when we speak of threats.

 

Jack Derwin:  How might the Court consider the totality of communications versus single statements?

 

Kent Scheidegger:  It was agreed at the argument that you do consider the whole context, and that was part of the argument for the state that even though -- if you pluck out individual statements and parse them one-by-one, you say, “Well, that isn’t very threatening. This one isn’t very threatening. That one isn’t very threatening --” but taken as a whole, they are. For example, there were statements from Counterman indicating that he was actually engaged in surveillance of Ms. Whalen, and that, coupled with statements like, “Die,” was indeed very frightening, and I think justifiably so.

 

Jack Derwin:  That does it for questions currently in the queue. I’ll do one more call to our audience. You can use the Q&A box at the bottom right of your Zoom window. And as we wait and see if we get any more, not to put you on the spot, but do you have a prediction for how this case will come out?

 

Kent Scheidegger:   No. It’s always dicey to predict from oral argument, but in this case, particularly so because there were a variety of ideas floated by various justices. I also note that this case does not follow the usual liberal/conservative lines, particularly when you look at the amicus briefs. I find myself on the same side as Erwin Chemerinsky, the Dean of Berkeley Law School. That has never happened before in the decades that we have been engaged in sparring on cases. So it could cut the usual lines on the Court as well. There is a feminist aspect to this case, that stalking is much more often committed by men against women, and that could have an influence as well.

 

Jack Derwin:  So I believe that does it -- well, we have one more question here—sort of, following up on the same line of questioning. But how do you contain it to the physical in today’s micro trigger world? The claim today, even by the ACLU, is that words that hurt really are violence.

 

Kent Scheidegger:  Well --

 

Jack Derwin:  More of a statement there, I think, than a question.

 

[Crosstalk]

 

Kent Scheidegger:  -- well, you do it -- yeah, I think -- I don’t think the Court will go that way. I think they are talking about exceptions to the general rule of content regulation of speech, and they’re inclined to keep that narrow, and I think they will keep the threats exception confined to actual threats of physical violence.

 

Jack Derwin:  And then one more here. Do you have any thoughts about why a middle ground is not required before the government jumps to prison for four and a half years? Why shouldn’t the government be required to dissuade before imprisoning?

 

Kent Scheidegger:  I’m sorry. Why isn’t what required?

 

Jack Derwin:  Why shouldn’t the government be required to dissuade before imprisoning—some sort of middle ground in terms of punishment?

 

Kent Scheidegger:  Well, I think if a person has committed acts that constitute a crime already, there isn’t any requirement in law that he be dissuaded from committing further criminal acts before going after him in prosecution. The target of the communications did, in fact, get a restraining order in this case, so I’m not sure that fact is even presented.

 

Jack Derwin:  And then following up on what you were just discussing—somewhat tongue in cheek here—who has diverged from their path, you or Chemerinsky?

 

Kent Scheidegger:  [Laughter] Well, I almost always support the state, and he almost never does, so I’ll leave it at that.

 

Jack Derwin:  All righty. Questions are continuing to come in so -- “If subjective test, who would have the burden of proof?”

 

Kent Scheidegger:  The state. Don’t say you never get a simple answer from a lawyer. There you go.

 

Jack Derwin:  [Laughter] One word. Two words, I suppose. Not bad. Not bad. Do one final call here for questions from our audience. Why is this statute not subject to a void for vagueness challenge?

 

Kent Scheidegger:  None was made in this case, and frankly, I don’t think it’s vague. I think the requirement of repetition is clear enough as criminal statutes go. So it’s an interesting question, but I don’t think it’s been presented in this case.

 

Jack Derwin:  One more here. Could the violation of a restraining order constructively establish intent as the felony murder rule establishes malice?

 

Kent Scheidegger:  Possibly, although the more straightforward way to go with that is just for the violation of a restraining order to itself be a crime. If you’ve been hit with a restraining order, and you know you have, and you go ahead and repeat the conduct anyway, that can and should be a crime.

 

Jack Derwin:  All righty. Well, thank you very much, Kent. This has been informative, and it’s clear our audience has really appreciated the breakdown. It’ll be interesting to see how this comes down in a couple months.

 

Kent Scheidegger:   All right. Thank you very much.

 

Jack Derwin:  Thank you very much. And thank you to our audience for tuning in to today’s program. You can check out our website at fedsoc.org or follow us on all the major social media platforms @fedsoc to stay up to date.

 

            With that, we are adjourned. Thank you very much.

 

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