The United States Supreme Court concluded its 2023 term in July and released several decisions. Some of these rulings have received extensive media coverage such as the decision on abortion overturning Roe V. Wade. Other decisions, although receiving less media attention, are significant to those of us working in the field of threat assessment and management. In the case of Counterman V. Colorado, the Court issued a decision that resolved a discrepancy among different jurisdictions and clearly articulated a bright line boundary between protected and unlawful speech.
Billy Raymond Counterman developed a fixation on a local musician. In 2010 he sent her an invitation request on Facebook which was accepted. Over the next six years, Counterman sent thousands of Facebook direct messages to the musician, including disturbing ones indicating that he had seen her while driving, “Was that you in the white Jeep?” Another message stated that Counterman had seen the musician doing “things that [she did] out and about.” Other messages told her to “die” and “f*ck off permanently.” She blocked him several times, but he would create new accounts and continue sending messages. The two never met in person and the musician never responded to any messages.
In 2016 Counterman was arrested in Colorado and charged with stalking based on the text messages he sent. Prosecutors did not present any evidence of physical stalking acts even though some of the messages indicated Counterman knew the musician’s activities. He was convicted of stalking based solely on the content of the messages and was subsequently sentenced to four-and-a-half years of prison.
Free Speech and Threats – Where are the Limits?
The First Amendment of the United States Constitution guarantees the right to freedom of speech and expression. This right is not unlimited or unconditional. While political speech, satire, and parody are all protected by the First Amendment, true threats are not. The challenge facing Threat Managers is to determine whether a statement is a true threat or protected speech.
In a 2003 case (Virginia v. Black, 538 U. S. 343, 359), the Supreme Court defined a true threat as “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.”
Until the Counterman decision there has not been consistent case law defining what constitutes a “true threat.” Federal judicial circuits were divided on this issue, with some circuits utilizing standards based on whether a “reasonable person” would interpret the statement as threatening. This is known as an “objective” standard. Other circuits applied “subjective” standards based on the speaker’s knowledge that their statement will be seen as a threat or the intent that their statement be a threat.
In Counterman V. Colorado, the Court held that statements are not protected by the First Amendment if the state can prove that the defendant had some subjective understanding of the threatening nature of their statements. The Court’s decision requires that to prosecute such statements the state must show recklessness—that the defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” The Court further clarified that the recklessness standard involves “insufficient concern with risk, rather than awareness of impending harm.” This is a “middle ground” position, the Court could have imposed a subjective standard requiring the prosecution to prove that an individual did intend to threaten his victim.
Counterman v. Colorado – The Decision and a New Standard.
He appealed and the Colorado Court of Appeals affirmed his conviction in 2021 under the standard that a person could “reasonably perceive” that the threats were serious. Counterman ultimately appealed to the U.S. Supreme Court. In their decision, the Supreme Court vacated Counterman’s conviction and remanded the issue back to the original court. That jurisdiction must now refile charges and adjudicate the matter under the new recklessness standard articulated in the decision. Colorado authorities have yet to decide on a course of action.
Reactions to the Decision
Victim advocates and others quickly criticized the decision stating that the net effect will be to make it harder for victims to protect themselves against stalkers. Experts in this field fully expect that victims will be less likely to report such behavior in the face of a new legal barrier. The requirement to show intent and recklessness may also complicate the efforts of law enforcement and prosecutors to investigate and prosecute such cases.
Legal analysts have also opined that a stalker, especially an online stalker, could claim mental illness as a defense saying they were not aware of how the communications would be received. The same analysts also wonder if a victim of such stalking would need to respond to a threatening communication with an explicit statement that such communication was regarded as threatening to preserve the option of prosecution. This is simply too much to ask of an already traumatized victim.
Supporters of the decision say that it strikes the right balance between the right to free speech and concerns regarding safety.
At a minimum, all sides agree the articulation of one legal standard clears up the ambiguity around this issue.
Time will tell if this was the correct standard.
What Does This Mean for Organizations Assessing Threats?
This Supreme Court decision does not address the content of the communications which were clearly threatening. This is a critically important distinction for threat managers. This decision articulated a standard for prosecution, not prevention or intervention. Referral for prosecution is merely one tool for threat managers to employ.
This decision should not change a threat manager’s overall assessment of risk. The Court did not opine on the dangerousness of Counterman or his communications. In a similar situation threat managers should view such statements as threatening and employ interventions to protect the victim.
Recommendations for Threat Managers Regarding Free Speech Threat Issues
- Collect and preserve any evidence that shows a person of concern responsible for a threatening message did so knowing that the message would be viewed as a threat. Collateral interviews will be key. Did the subject speak to anyone else about the victim? Do those statements indicate intent to threaten?
- If the subject claims the communications were only jokes, sarcasm, or “artistic expression” comments like song lyrics, look for evidence that contradicts this claim, such as collateral comments to others.
- If an admonishment or warning was given, document it as well as the subject’s responses, demeanor, and behavior.
- Context is more important than ever and should be considered and documented in assessments.
What’s Next for the Supreme Court?
Having dealt with issues regarding the First Amendment during the last term, the Supreme Court seems to be turning its attention to the Second Amendment in its upcoming term. The court has agreed to hear a case challenging the federal law that prohibits the possession of firearms by persons subject to domestic violence restraining orders (United States v. Rahimi). In 2019, Mr. Rahimi assaulted his girlfriend and threatened to shoot her. She obtained a domestic violence restraining order. This order suspended Mr. Rahimi’s handgun license and prohibited him from possessing firearms.
He subsequently threatened a different woman with a gun and was arrested and charged with assault with a deadly weapon. Within the next two months, he opened fire in public five times. Enraged by a social media post he used an AR-15 rifle to shoot into the person’s home and when a fast-food restaurant declined a friend’s credit card, he fired several bullets into the air. Rahimi was arrested and convicted of violating federal law. The Supreme Court will now hear an appeal of this conviction arguing that the federal gun laws are unconstitutional.
We will monitor this case and report back to you when a decision has been announced.
Disclaimer: This information should not be considered legal advice. We are not attorneys. Our assessment of this recent Supreme Court decision is from the perspective of behavioral threat assessment management specialists working in the role of workplace violence prevention practitioners. Organizations and individuals should seek out their own legal counsel for specific guidance as needed. A properly constituted and well-run threat management program should have regular access to legal counsel.
Coming up in August.
Our Clinical Security Solutions team will attend the annual Threat Management Conference in Anaheim, California. The TMC, sponsored by the Association of Threat Assessment Professionals (ATAP) is a yearly gathering of multi-disciplinary professionals working in the field of Behavioral Threat Assessment and Management. Nationally recognized experts will give presentations on current information, research, and techniques relating to the industry on such topics as mass shootings and other public attacks, workplace violence, school/campus violence, domestic violence, the assassination of public figures, and other situations involving the prevention of targeted violence.