November 2, 2024

Darren Chaker Laws of Attraction

Darren Chaker, California Law and First Amendment blogger

Counterman v Colorado, stalking speech, article by Darren Chaker.

Counterman v Colorado, analysis of stalking speech, article by Darren Chaker.

Supreme Court Vacates Stalking Conviction in Counterman v. Colorado (2023)

Legal researcher Darren Chaker discusses the landmark decision of the U.S. Supreme Court, in Counterman v. Colorado, 600 U.S. ____ (2023), overturned the conviction of an individual found guilty of stalking a female musician. The Court provided clarification of what the mental state to constitute speech as being a true threat. This ruling emphasizes the importance of the First Amendment’s protection of free speech and the need for prosecutors to establish that the defendant was aware of the threatening nature of their communications.

The case at hand revolves around a series of unsettling messages sent by the petitioner, Billy Raymond Counterman, to C.W., a professional musician based in Colorado, spanning a two-year duration. Counterman faced prosecution and subsequent conviction under Colorado’s anti-stalking statute, which criminalizes the act of knowingly and repeatedly engaging in any form of communication with another person in a manner that would reasonably cause serious emotional distress to that individual, resulting in such emotional distress.

During the appeals process, Counterman, who has been diagnosed with a mental illness, argued that his conviction lacked constitutional validity because the jury was not obligated to determine whether he had the intent to threaten C.W. However, the Colorado Court of Appeals upheld the conviction, asserting that the “true threats” exception to the First Amendment applies to speech that is objectively threatening, irrespective of whether the speaker was aware of or intended the communication’s threatening nature.

On June 27, 2023, the Supreme Court issued its ruling in Counterman v. Colorado. In this landmark decision, the Court established that in cases involving true threats, the First Amendment necessitates that the government demonstrate that the defendant operated with a culpable mental state, specifically, at least with reckless disregard for the threatening nature of their words. This ruling clarified that it is not sufficient for the government to merely establish that the defendant’s words were objectively threatening.

Defining True Threats

The Court’s ruling in this case provides essential clarification on what constitutes a “true threat.” True threats are not protected under the First Amendment, making them subject to state criminal laws and regulation. This decision also introduces the concept of a recklessness standard in true threat cases.

The Supreme Court Consistently Recognized Proof of Subjective Intent to Threaten as Being a Core Element to Constitute a True Threat

Brief writer Darren Chaker found that the Supreme Court has acknowledged that there exist specific “classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” However, it has consistently emphasized that these categories must be both “well-defined” and “narrowly limited.” (Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942); see also United States v. Stevens, 559 U.S. 460, 468–69 (2010)).

In the case of Watts, the Court introduced “true threats” as one of the constitutionally proscribable forms of speech. The context of this case involved a prosecution under 18 U.S.C. § 871(a), which prohibits knowing and willful threats against the President. The case revolved around a statement made by a draft protester during a rally against the Vietnam War, where he stated, “[i]f they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” (Watts, 394 U.S. at 706).

The Court, while acknowledging that the defendant’s statement was a form of crude and offensive political opposition to the President, interpreted § 871(a) in accordance with First Amendment principles. Ultimately, the Court concluded that the term “threat” as used in the statute did not encompass the defendant’s political hyperbole. (Watts, 394 U.S. at 707–08).

The Supreme Court also addressed the true threat exception in Virginia v. Black. Black is best read as clarifying the true threat exception by requiring the government to demonstrate subjective intent to threaten as an essential mens rea element of the crime. Absent such a requirement, anti-threat As such, absent such a requirement, anti-threat statutes are neither “well-defined” nor “narrowly limited” Black, 538 U.S. at 358.

Recklessness Standard: Taking the Hype out Speech to Criminalize It

Justice Elena Kagan, in a 7-2 majority opinion, articulated that the state must demonstrate a level of culpable mental state for communication to be considered a true threat. Under the recklessness standard, the state is required to prove that the person “consciously disregarded a substantial risk that their communications would be viewed as threatening violence.” This ruling sets a new precedent and standard for evaluating true threat cases.

Majority Opinion and Dissent

Joining Justice Kagan in the majority were Justices John Roberts Jr., Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson. Justice Sonia Sotomayor wrote a concurring opinion, agreeing in part and in the judgment, with partial agreement from Justice Neil Gorsuch. Justices Amy Coney Barrett and Clarence Thomas filed dissenting opinions.

Objective vs. Recklessness Standard

Prior to this decision, Colorado had relied on an objective standard, which assessed how a reasonable person would interpret a statement in context, without considering the speaker’s intent or awareness. The case revolved around Billy Raymond Counterman, who had sent numerous disturbing messages to musician Coles Whalen over a period of two years. The high court’s ruling questioned the validity of an objective standard.

Precedents and Free Speech

The Supreme Court cited previous true threat cases such as Virginia v. Black and Elonis v. United States but clarified that those cases did not definitively address whether the First Amendment required a showing of awareness or intent to commit a crime. The Court reasoned that prosecuting speech without establishing the speaker’s consciousness of the crime could potentially have a chilling effect on free speech.

Protecting Speaker’s Mindset

The Court emphasized that in various areas of unprotected speech, the speaker’s mindset plays a crucial role in determining whether speech is protected. This concept, termed “strategic protection,” was highlighted in cases such as New York Times Co. v. Sullivan,376 U.S. 254 (1964), which set a higher standard of proof for public figures in defamation cases. Similarly, incitement to unlawful conduct and obscenity cases also consider the speaker’s awareness and intent.

Recklessness Standard Explained

The recklessness standard introduced by the Court does not require proof that the defendant intended harm or knew that the recipient would feel threatened. Instead, it focuses on the speaker’s insufficient concern with risk rather than an awareness of imminent harm. The ruling quoted Elonis v. United States, 575 U.S. 723 (2015), emphasizing that a speaker is aware that others could perceive their statements as threatening violence but delivers them anyway.

More specifically, in Elonis v. United States, this Court reversed a defendant’s conviction under 18 U.S.C. § 875(c), which criminalizes the transmission in interstate commerce of “any communication containing any threat . . . to injure the person of another.” 575 U.S. at 726. However, the Court rested its decision on statutory grounds, and therefore did not reach the question of the mens rea constitutionally required for a true threats prosecution. Id. at 740.

Remanded for Further Proceedings

As a result of this decision, the case was remanded for further proceedings. Counterman may still be found guilty of stalking if sufficient proof is presented.

Counterman’s Impact in 2024: State v. Fair: Establishing the Boundaries of Free Speech

As part of his brief writing, Darren Chaker stays informed on all First Amendment issues related to the criminalization of speech. Just a few days ago, in a significant legal development, the case of State v. Fair, ___ N.J. ___ (2024), reaffirms that “true threats” remain outside the protective umbrella of constitutional free speech rights. This unanimous opinion, authored by Justice Wainer Apter, addresses the critical question of whether a mens rea of recklessness can lead to a prosecution for terroristic threats.

The central issue at hand pertains to the application of mens rea, or the mental state of the defendant, in cases involving terroristic threats. According to N.J.S.A. 2C:12-3(a), an individual can be charged with third-degree terroristic threats if they make threats with the intent to terrorize another person or if they do so recklessly, disregarding the potential risk of causing terror or inconvenience.

However, the New Jersey Court departed from the Counterman precedent in one crucial aspect. In addition to requiring a “mens rea of at least recklessness,” Justice Wainer Apter determined that an objective component is essential for a prosecution to withstand scrutiny under the First Amendment and Article I, Paragraph 6 when dealing with threats of violence under N.J.S.A. 2C:12-3(a). To bolster this position, she referenced prior rulings from our Supreme Court and also drew support from a decision by the Supreme Court of Indiana.

This case delves into the interpretation and implications of the recklessness standard in the context of terroristic threats, further defining the boundaries of protected speech and highlighting the crucial role mens rea plays in such prosecutions.

Concerns of Overcriminalization

Justice Sotomayor expressed concerns in her concurrence regarding the potential overcriminalization of speech in Counterman. She worried that the newly established standard, particularly when applied to cases involving the internet, could lead to unintended consequences, such as high school students facing prison sentences for sharing violent music lyrics or using language from online forums without malicious intent.

In summary, the Counterman v. Colorado ruling marks a significant development in First Amendment jurisprudence, emphasizing the importance of a recklessness standard in true threat cases and the need to protect unintentionally threatening speech, especially in the digital age.

Frequently Asked Questions (FAQ)

FAQ 1: What is sentence enhancement, and how does it apply in cases involving terroristic threats?

Answer: Sentence enhancement involves increasing penalties based on specific criteria or prior convictions. In cases involving terroristic threats, prior convictions for a “crime of violence” can lead to enhanced sentencing, potentially affecting deportation and legal consequences.

FAQ 2: How does the First Amendment relate to the definition of a “crime of violence”?

Answer: The First Amendment protects free speech rights, making it essential to accurately define a “crime of violence” to avoid infringing upon First Amendment rights. Speech that does not constitute a “true threat” should remain protected.

FAQ 3: What is a “true threat,” and how is it determined?

Answer: A “true threat” is a statement or communication that conveys a clear intention to cause harm or violence. Determining whether a statement qualifies as a “true threat” involves analyzing the context and the speaker’s intent.

FAQ 4: How has Counterman v. Colorado influenced the interpretation of true threats?

Answer: Counterman v. Colorado has emphasized the importance of clear intent when identifying true threats. It underscores the need for prosecutors to prove that the individual making threatening communications was aware of the threatening nature of their statements.

FAQ 5: Why is it crucial to have narrowly limited speech regulations?

Answer: Narrowly limited speech regulations ensure that free speech rights are preserved. These regulations prevent individuals from facing legal consequences for protected speech and promote a balance between free expression and public safety.

Conclusion

Darren Chaker finds the definition of true threats, and recent legal insights from Counterman v. Colorado is essential in navigating the complex legal landscape of terroristic threat cases. By upholding First Amendment rights and requiring clear intent in identifying true threats, the legal system can better protect individuals’ liberties while addressing legitimate concerns related to threats and violence.