A Colorado free speech case that went before the U.S. Supreme Court on Wednesday could shift the boundaries of what is considered protected by the First Amendment and what qualifies as an illegal threat across the country.
Some states require judges and jurors to consider the speaker’s state of mind and intent when a threat was made. But other states, including Colorado, consider only the impact of the threat on a “reasonable person,” not the threat-maker’s intent.
Counterman sent as many as 1,000 messages to the musician on Facebook during a two-year span that started in 2014. She ignored his messages and repeatedly blocked him, but he continued to send messages that implied he was watching the woman, was romantically interested in her and was frustrated by her lack of response.“Was that you in the white Jeep?” he wrote in another message.Colorado courts found that Counterman’s messages were true threats.
“Criminalizing misunderstanding is especially dangerous in an age when so much communication occurs on social media, which brings together strangers in an environment that removes much of the context that gives words meaning,” Elwood said. “It chills expression and imposes prison time on speakers who do not tailor their views to their audience… The chilling effect comes from being told, ‘It doesn’t matter what you think, you have to think about the reaction of your audience.
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