Speaker Intent: Understanding if a Threat is Protected by the First Amendment
Technology is one of the world’s fastest-growing industries. A large portion of our population has their information stored online, making it open to the public to see, learn, and analyze. For example, it often only takes a quick Google search to find someone’s address, phone number, job, and political affiliation. Public figures have almost their entire life on the internet, as that is how they gain and interact with their followers. Knowing this, it is more important now than ever to keep all citizens — including students, small-business owners, and even public figures — safe.
In Counterman v. Colorado, Coles Whalen (C.W.) was forced to live in fear because of Billy Counterman’s constant attempts to interact with her online. C.W. had made it clear on many occasions that she did not want any type of relationship or interaction with Counterman as she continuously blocked all of his social media accounts and never responded to any messages [1]. In a way, Counterman was trying to intimidate C.W. by telling her that he had witnessed her in public. Intimidation can become a criminal offense unless there is an authorized reason for this to take place as it can also become a form of harassment [2]. In this case, there is no reason that Counterman had to intimate C.W. besides his own desire.
Despite the First Amendment protecting free speech, sending messages that cause someone pain and despair is unlawful, illegal at times, and has a negative consequence on the other person. Speaker intent should not be taken into account if it is causing the receiver harm in any way. It should only matter if the speaker says the threat as a way of self-defense.
There are many ways to decipher if a message can be considered a threat, a class of speech not protected by the First Amendment. In Virginia v. Black, the Supreme Court defines what a threat is and the type of speech that can be considered as a threat: “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" [3]. This means that the First Amendment protects someone if they do not mean to make the message they sent sound violent or frightening. According to this case, the government has to prove that the speaker knew their intent, a highly opinionated and complicated process. In Counterman v. Colorado, Counterman argued that his speech should be protected because he was not in the right mental state and did not fully understand the impact of his words. Whether a threat can be considered a true threat or not should depend more on the actual content of the message instead of the mental state the sender was in at the moment. In the end, they are not the ones receiving a dangerous message and constantly pondering if they are going to be safe. This was considered deeply in Counterman as the Supreme Court tried to decide what mental state should be protected by the First Amendment.
Irrespective of the deliverer’s intent, threatening messages should have consequences if they negatively affect the receiver. C.W. began to decline social engagements and performances because she feared Counterman’s messages. This prevented her from earning a stable income. She also began to suffer from extreme anxiety, had to give up her music career, and moved to an undisclosed location. According to Pew Research, many people believe that social media is the main place they get harassed whether it is through other people, brand advertising, or political content [4]. A different study showed that 79% of influencers report unwanted private communication as their main way of being stalked [5]. Whether the stalker meant the messages in a threatening way or not, public figures, like C.W., are still forced between choosing their safety or public image. Considering that their public image is their job, this is not something they should have to pick between, emphasizing the idea that the person responsible should receive punishment. This type of protection should also expand to private figures as they would not be able to continue with their daily life if they felt threatened. For example, Anna Nasset was a gallery owner in Washington who suffered from a man continuously stalking her [6]. She was a normal citizen whose case went to a judge because her stalker became increasingly dangerous as he sent violent and offensive messages. In this situation, the man was sentenced to ten years. This case proves that this type of stalking and harassment can happen to anyone, whether they are willingly displaying their life on social media or not. In both situations, the harasser should be punished because it created a negative impact on the receiver’s day-to-day life.
Some argue that the First Amendment should protect the speaker’s intent when it comes to threats rather than just focusing on how the victim receives it. The ACLU and other partners argue that “if a person could be convicted for any statement that could reasonably be perceived as threatening,... people would need to constantly monitor…their speech to avoid potentially sparking fear in anyone who might foreseeably hear or read it” [7]. This shows that it can become a very subjective area when deciding what language is considered harmful or not. For example, in Terminiello v. Chicago, the Supreme Court declared fighting words to be those that present a clear danger [8]. However, people can define danger differently as well which is why they believe speaker intent should be emphasized when deciding a punishment. To be convicted, the prosecutor has to determine that the defendant sent a message with the intent of the message coming across as a threat to another person. However, even if the defendant did not mean to “sound threatening or violent,” the receiver could still be harmed, whether it be mentally, professionally, or otherwise. 52% of people have faced a threat on social media and that percentage has increased for public figures. It is a very unclear process to determine if someone meant their threat as only 39% of people confess to their crime leading to my belief that speaker intent should not be taken into consideration [9]. This statistic brings up the question of whether a prosecutor will be able to gather enough evidence to prove intent especially when it is difficult to prove the tone and meaning of digital messages.
Anyone sending something that resembles a threat should be punished in some way, whether that is through jail time or not. There are four types of threats: a direct threat, an indirect threat, a veiled threat, and a conditional threat [10]. Each one has its own risk, as some threats include specific details about the violent act and some threats are vaguer. Counterman gave multiple direct threats such as “Staying in cyber life is going to kill you” and “You’re not being good for human relations. Die" [11]. These factors should be included when determining someone’s punishment for even putting those words out there in the first place [12]. In Counterman, the government did not initially prove that Counterman knew he was making these threats which is why it was brought back to court about 9 years later. However, he was sent to jail because the state proved that several reasonable people considered his numerous Facebook accounts, surveillance-type comments, and violent threats to be harassment. Speaker intent should only be taken into account if it was just a few comments without a clear understanding that it is a threat. That was not the case in this situation because, despite Counterman’s intention, he was still constantly harassing and stalking C.W. There is no reason he should not receive any punishment, especially if reasonable third parties think that his messages are harmful.
The First Amendment should not take speaker intent into account when deciding if the defendant should be punished for a victim feeling threatened. Most of the time, one does not admit to their crime, and the popularity of online messaging makes it even more difficult for a prosecutor to prove intent. However, the victim still has to negatively adjust their life because of fear and anxiety. Counterman is a clear example of a person being forced to move away from their career and main source of income because she no longer felt safe. In the end, the speaker is still the cause of physical, mental, or professional damage and should receive a type of punishment for this. These cases are especially important in a rapidly expanding digital world.
Bibliography
[1] “Lozano Smith | Client News Briefs.” n.d. Www.lozanosmith.com. Accessed November 6, 2023. https://www.lozanosmith.com/news-clientnewsbriefdetail.php?news_id=3223.
[2] “Legitimate.” n.d. LII / Legal Information Institute. https://www.law.cornell.edu/wex/legitimate.
[3] “Virginia v. Black, 538 U.S. 343 (2003).” 2019. Justia Law. 2019. https://supreme.justia.com/cases/federal/us/538/343/.
[4]Pew Research Center, “How Americans Feel about Social Media and Privacy,” August 17, 2020, https://www.pewresearch.org/short-reads/2018/03/27/americans-complicated-feelings-about-social-media-in-an-era-of-privacy-concerns/.
[5] Anna Brown, “Online Stalking of Influencers on Instagram,” Rexxfield Cyber Investigation Services, May 15, 2023, https://rexxfield.com/online-stalking-of-influencers-on-instagram/.
[6]“After 9-Year Fight to Prosecute Her Stalker, Woman Shares Story to Help Other Survivors | Vermont Center For Crime Victims,” n.d., https://www.ccvs.vermont.gov/news/after-9-year-fight-to-prosecute-her-stalker-woman-shares-story-to-help-other-survivors/.
[7] Laura Moraff, “Core First Amendment Rights Are Implicated in This Supreme Court Case about True Threats | ACLU,” American Civil Liberties Union, June 12, 2023, https://wp.api.aclu.org/news/free-speech/core-first-amendment-rights-are-implicated-in-this-supreme-court-case-about-true-threats.
[8] “Fighting Words,” LII / Legal Information Institute, n.d., https://www.law.cornell.edu/wex/fighting_words#:~:text=Fighting%20words%20are%20words%20meant,immediate%20breach%20of%20the%20peace.
[9]“Handcuffing the Cops: Miranda’s Harmful Effects on Law Enforcement,” n.d., https://www.ncpathinktank.org/pub/st218?pg=3#:~:text=Richard%20Leo.
[10] “Threat Assessment Team - University Police - UA Little Rock,” University Police, June 20, 2022, https://ualr.edu/safety/home/emergency-management-plan/threat-assessment-team/#:~:text=Types%20of%20Threats,%2C%20indirect%2C%20veiled%2C%20conditional.
[11] Noah Feldman | Bloomberg, “The Supreme Court Made It Harder — Again — For Women to Get Justice,” Washington Post, June 28, 2023, https://www.washingtonpost.com/business/2023/06/27/supreme-court-prioritizes-a-stalker-s-free-speech-over-his-victim-s/5a228adc-1517-11ee-9de3-ba1fa29e9bec_story.html.
[12]“02599-NCTC 13 FEBRUARY 2023 AUTHORED by NCTC, DHS, FBI Threat Assessment and Threat Management (TATM) -Assessment and Management (3 of 3).” n.d. https://www.dni.gov/files/NCTC/documents/jcat/firstresponderstoolbox/138cs_-_First_Responder_Toolbox_-_Threat_Assessment_and_Threat_Management_-TATM_-_A_Model_Critical_to_Terrorism_Prevention_3_of_3.pdf.