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Supreme Court sets new standards for what constitutes 'true threats'


Today the Supreme Court overturned the stalking conviction of a man named Billy Counterman. He sent more than a thousand Facebook messages to a singer-songwriter from Colorado. Those messages made the musician fear for her safety, and her panic upended her career as a performer. Counterman was sentenced to 4 1/2 years in prison. And the Supreme Court heard his claim that the messages did not meet the legal standard of a true threat, so the conviction violated his free speech rights, he argued. Well, in a 7-2 decision, the Supreme Court sent the case back to the Colorado courts, proposing a different standard of what speech is protected and what speech is a threat. University of Miami law professor Mary Anne Franks is here to explain the implications of that ruling. Welcome.


SHAPIRO: So what did the court propose as the new standard for threats of violence?

FRANKS: The standard that the court gave us was a recklessness standard, which means that Counterman is partly right here, that he's saying there needs to be some sort of subjective mental state on his part before he can be convicted for stalking, but didn't go as far as, say, he would have to intend that the communications that he was sending were, in fact, intended to threaten or to terrify the victim. Instead, the court said the recklessness standard is enough.

SHAPIRO: And so do you take that to mean the defendant's claim of mental illness might exempt him from consciously understanding the recklessness of his actions?

FRANKS: It wouldn't even have to be a mental illness question, as long as you've got someone who can say and prove that what they really intended in their heart of hearts was to communicate in a way that they thought would be welcome. Let's say a person who is deluded into thinking that he's in a relationship with another person when in fact they're not - that would be enough for a court to say, well, he didn't actually think that there would be a risk that this would be perceived as threatening. He thinks that it's, in fact, welcome, and that means that he cannot be convicted for stalking.

SHAPIRO: Are you surprised by this 7-2 decision?

FRANKS: Unfortunately, I'm not surprised by the decision. And it could have been worse. They could have gone with a standard that says you have to have the purpose instead of just recklessness. But it was fairly clear from the oral arguments that the court was not taking seriously the reality of stalking or the fact that it is already incredibly underenforced and that the kind of life that victims of stalking are resigned to is one in which their freedom of expression and their physical safety is threatened. It's quite clear that the court did not care about those values and only seem to care about making up a First Amendment protection for stalking.

SHAPIRO: So it's clear you agree with Colorado's attorney general, who said this decision will make it more difficult to keep stalkers from tormenting victims. On the other hand, the ACLU and civil liberties groups support this decision. They say this means that a misunderstood communication, like a reporter's request for comment or political hyperbole, will not be mistaken for a genuine threat under this ruling. What do you make of that argument?

FRANKS: I think that argument really does overlook the fact that we're talking about stalking as a specific form of conduct that is unwanted. And it may be true enough when we're talking about political statements or a one-off comment that someone might make that the appropriate level and the standard should be something like recklessness or possibly even purpose. But when we're talking about a form of abuse and terrorization that is really just about a nonconsensual communication to someone that is repeated and requires a course of conduct, it's really highly inappropriate to impose this kind of standard because it really is giving a blank check to stalkers who can just say, I am deluded enough to believe that these things are welcome. That isn't a political statement. There really isn't any reason to be deferential to this kind of speech simply because you're trying to protect a stray political comment.

SHAPIRO: Does this ruling signal any pattern to you about the court's thinking more broadly about free speech and the First Amendment?

FRANKS: It seems pretty clear that this court is determined to provide First Amendment protections to the worst of the worst, not just in the sense of we have to protect bad speech to protect good speech, but to completely discount the fact that the freedom of speech of the victims of stalking is being compromised. They're striking a blow for free speech of the people who want to terrorize and to stalk and to abuse, especially women and other minorities and other vulnerable groups.

SHAPIRO: Mary Anne Franks is a professor of law at the University of Miami and president of the Cyber Civil Rights Initiative. Thank you very much.

FRANKS: Thank you.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Linah Mohammad
Prior to joining NPR in 2022, Mohammad was a producer on The Washington Post's daily flagship podcast Post Reports, where her work was recognized by multiple awards. She was honored with a Peabody award for her work on an episode on the life of George Floyd.
Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.

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