Supreme Court Ruling Will Make Online Harassment Harder

This week, the U.S. Supreme Court made prosecuting online harassment more difficult. In a 7-2 ruling on Tuesday, SCOTUS determined that a lower court’s decision to convict and imprison a Colorado man for stalking was flawed. The majority opinion in the case (Counterman v. Colorado), authored by Justice Elena Kagan, clarifies limits on what sorts of digital communication can be considered criminal and raises the bar for assessing online threats.

Billy Raymond Counterman, the petitioner in the Supreme Court case, sent hundreds—even thousands—of unsolicited, online messages to musician Coles Whalen over the course of years. Though Whalen blocked Counterman several times, he would frequently create new accounts and continue to send her disturbing messages. At least one ordered Whalen to die. “Staying in cyber life is going to kill you,” read another. Multiple messages presented in a 2017 trial implied that Counterman, who had previously been federally convicted twice of making threats to others, was tracking Whalen’s whereabouts.

Yet, despite the local singer-songwriter feeling deeply afraid and unsettled by Counterman’s online behavior—by her own account, going as far to cancel performances, purchase a gun at the advice of police, and eventually relocate out of state—SCOTUS has ruled that Counterman’s conviction violated his First Amendment rights. His case will now be re-litigated in the lower courts, where prosecutors could opt to retry Counterman, though he has already served four years of prison time over his messages to Whalen.

The ruling came down to deciding what legally constitutes a “true threat” and how a court can objectively determine that. The basic gist: Online messages and posts must be made with conscious knowledge that they could be perceived as threats, in order for such communications to be prosecuted as a crime, per SCOTUS.

For online speech to reach the legal benchmark of a “true threat,” the prosecution in any case must be able to show that the person responsible for that speech was aware that what they’re saying could have been interpreted as a threat. In other words: the person making the posts or sending the DMs must be behaving recklessly. “The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” reads the opinion.

The SCOTUS ruling admits that “the existence of a threat depends not on ‘the mental state of the author,’ but on ‘what the statement conveys’ to the person on the receiving end.” However, the opinion argues that First Amendment protections still shield some threatening communications from liability, and can “demand a subjective mental-state requirement.” It’s a partial—though not a complete—victory for Counterman and his legal team.

In his 2017 conviction, a lower court ruled that Colorado stalking laws didn’t require proof of the speaker’s intent to intimidate. In his petition to the Supreme Court, Counterman’s lawyers contended that prosecutors should have had to prove intent. He and his attorneys have consistently maintained that, because of mental illness, his messages weren’t intentionally threatening. Counterman has said he didn’t know that he was engaging in an entirely one-sided exchange. SCOTUS stopped short of agreeing on the intent point, by settling on “recklessness,” but still ultimately decided that courts do have to consider state of mind when trying someone’s online speech.

In the court’s majority view, peoples’ right to speak freely on the internet was at stake in the case, and that remains the constitutionally protected priority. “Bans on speech have the potential to chill, or deter, speech outside their boundaries,” writes Kagan. “An important tool to prevent that outcome is to condition liability on the State’s showing of a culpable mental state.”

Well-known speech advocacy groups like the American Civil Liberties Union and Electronic Frontier Foundation filed briefings in the case, arguing for more rigorous standards and supporting the petitioners. These groups noted that, without a more robust standard, there was a risk of criminalizing errors, jokes, memes, and other online speech taken out of context.

Yet this week’s ruling is still a hard-to-swallow verdict given the specifics of the central case, particularly for many people who have been victims of cyberstalking, as reported by the Washington Post. It is nigh impossible to avoid the internet these days, as much of daily life takes place there/here, and nobody should have to stay disconnected for their own safety. Advocates for cybercrime victims argue that this ruling itself could quell free speech online and off by making people afraid to participate and be visible in society. “Everybody’s voice should be allowed. If you’re silencing victims, then their voices aren’t part of the democratic conversation,” said Lauren R. Shapiro, a professor of criminal justice at John Jay College, to the Washington Post.

And some moderation experts have expressed concern that the new ruling will make tech platforms less eager to monitor and manage what happens on their sites. “If things are considered less illegal, tech platforms are less culpable,” Kat Lo, a content moderation researcher at the non-profit group Meedan, told WaPo.

This brings us back to the perennial question of whether the Supreme Court is the best forum for litigating issues involving the internet. Online harassment is a serious problem that can derail victims’ entire lives. Simultaneously, the ability to post content freely to the internet, even when it might be distasteful or upsetting to others, is a fundamental tenant of online freedom. Perhaps, when so much is at stake, the people making the calls here, should at least know how social media works.