July 28, 2023
Counterman v. Colorado, 600 U.S. ___, No. 22-138 (2023) (Kagan, J.)
Response by Mary Anne Franks
Geo. Wash. L. Rev. On the Docket (Oct. Term 2022)
Slip Opinion | SCOTUSblog
How Stalking Became Free Speech:
Counterman v. Colorado and the Supreme Court’s Continuing War on Women
In the wake of Dobbs v. Jackson Women’s Health Organization,1 the decision that overturned Roe v. Wade,2 Adam Serwer observed that “the Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country.”3 Serwer characterized the conservative supermajority’s ventriloquizing of the Framers to bless their preferred political outcomes as “undead constitutionalism”: “Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.”4 This conclusion has only been further underscored in decisions such as New York State Rifle & Pistol Association, Inc. v. Bruen,5 which invalidated a broad range of firearms regulation; Students for Fair Admissions v. Harvard,6 striking down affirmative action; and 303 Creative LLC v. Elenis,7 creating a constitutional right to discriminate.8 Taken together, these decisions further the rightwing extremist agenda to forcibly return the United States to the control of “We the People” as they were understood to be at the time the Constitution was written: white men.
The consequences of undead constitutionalism are destructive to American society as a whole, but the harms will be felt most acutely by those at the bottom of the racial patriarchy: racial minorities, sexual minorities, and women. Regarding women in particular, the liberal Justices dissenting in Dobbs expressed the impact directly and succinctly: “When the majority says that we must read our foundational charter as viewed at the time of ratification . . . , it consigns women to second-class citizenship.”9
And yet one of the most devastating, unprincipled, and dangerous decisions handed down by the Supreme Court this term—a decision that jeopardizes women’s rights to speak, to associate, to work, and to live—was not the product of the conservative supermajority, but of an alliance of the entire liberal wing with the majority of the conservatives. The decision in Counterman v. Colorado,10 which effectively established a First Amendment right to stalk, was authored by Justice Elena Kagan for a 7–2 court; only Justice Clarence Thomas and Justice Amy Coney Barrett dissented. Even as stalking experts and victim advocates emphasized that the decision means that more women will die at the hands of their stalkers,11 self-styled civil libertarians across the political spectrum celebrated the outcome as a victory for First Amendment.12 In Counterman, the liberal Justices proved that they were no less practiced in the art of undead constitutionalism than the conservatives. Whatever else their differences, conservative and liberal factions in and outside of the Court agree that the Constitution demands the sacrifice of women’s lives to men’s speech.
The door that the Supreme Court walked through in Counterman was opened nearly a decade ago in Elonis v. United States,13 another case involving male violence against women. At issue in Elonis was whether a conviction under the federal threats statute required both an objectively threatening communication and some kind of subjective intent to threaten on the part of the communicator.14 The issue had been briefed as both a statutory interpretation and a First Amendment question, but the Court sidestepped the First Amendment issue and focused solely on whether a federal statute that was silent with regard to the mental state necessary for any element could be satisfied by a showing of negligence or required something more.15
To understand Elonis, and how it laid the groundwork for Counterman, it is necessary to briefly review some basic principles of criminal law. Criminal law convictions generally require proof beyond a reasonable doubt of both a “guilty act” (actus reus) and a “guilty mind” (mens rea).16 For example, the act of shoving another person is not an assault unless it is accompanied by a culpable mental state.17 If the act was involuntary (the contact was caused by something beyond the actor’s control, such as a seizure or being shoved herself) or was reasonably intended to help rather than harm (for example, the actor shoved the victim in order to remove him from the path of an oncoming car), the actor cannot be convicted of assault.
Mens rea or mental state is sometimes referred to as “intent,” which creates confusion because it implies that a person must specifically intend harm in order to be guilty of a crime. In fact, there are several kinds of culpable mental states, and express intent to cause harm is only one of them.18 The Model Penal Code outlines four: purpose, knowledge, recklessness, and negligence.19 Purpose means intent in the commonly understood sense of an express and conscious desire to achieve a certain result.20 Knowledge means conscious awareness that a certain result is almost certain to occur.21 Recklessness means the conscious disregard of a substantial and unjustified risk that a certain result will occur.22 Negligence differs from recklessness only in the sense that a reasonable person would have been aware of the risk even if the actor was not.23 Accordingly, the negligence standard is sometimes referred to as the “reasonable person” standard or the “objective” standard, with “objective” distinguishing between what a person objectively should have known from what a person in fact did subjectively know.24 Rarely, criminal law allows punishment for harmful acts even if a reasonable person would not have known that harm would result. This is the case with so-called “strict liability” offenses, which require no demonstration of any mental state at all, objective or subjective.25
Ideally, criminal statutes make clear what the requisite mental state for each element of an offense is, but a number of statutes fail to do.26 One way to interpret a statute that is silent about mental state is that the offense does not require any; that is, it is a strict liability offense.27 At the time of Elonis, the Supreme Court had already made clear, based on the longstanding view that criminal punishment generally requires some form of culpable mental state as well as conduct, that it strongly disfavored the presumption of strict liability.28 But that still left courts with a wide range of mental state options, including the objective, “reasonable person” standard of negligence.
Elonis argued that his conviction for violating the federal threats statute under a negligence standard was unconstitutional, and the Court agreed.29 It held that as a matter of statutory construction, the federal threats statute required a showing of some kind of subjective intent, though it declined to specify whether that meant recklessness, knowledge, or purpose.30
As noted above, the majority chose not to address Elonis’s argument that his threatening statements, including Facebook posts in which he fantasized about raping and murdering his estranged wife, were “therapeutic” or “artistic” expression protected by the First Amendment.31 But Justice Alito, in a partial concurring and dissenting opinion, directly addressed and rejected Elonis’s claim that the First Amendment protects objectively threatening communications if the prosecution has not proven that the person making them did not actually intend to cause harm: “whether or not the person making a threat intends to cause harm, the damage is the same.”32 To Elonis’s claim that his threats were “constitutionally protected works of art” on par with violent rap lyrics, Alito emphasized the importance of context: songs performed in front an audience are not like “[s]tatements on social media that are pointedly directed at their victims,” and ignoring that context “would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.”33 Alito noted that this would have particularly serious consequences for victims of domestic abuse, as “[t]hreats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace.”34 Indeed, Elonis is currently appealing, on First Amendment grounds, his federal cyberstalking conviction in a separate and subsequent case in which he targeted his ex-wife, the prosecutor in his threats case, and another former intimate partner.35
Like Elonis, Billy Ray Counterman is a serial abuser of women who has invoked the First Amendment to justify his actions. Counterman had already been convicted and served time for threatening his ex-wife and her family with violence (including threats to “put your head on a fuckin sidewalk and bash it in,” and to “rip your throat out on sight”) when he became obsessed with C.W., a local musician.36 Over the course of six years, he terrorized C.W. with thousands of unwanted messages sent through Facebook, asking her questions about her personal life, insinuating that he was physically surveilling her, and telling her he wanted her to die.37 Increasingly afraid for her life, C.W. stopped performing, began varying her daily routines, and started carrying a gun.38
Counterman was convicted under a Colorado law that prohibits repeatedly communicating with another person in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.”39 While the law explicitly requires that the communication be objectively terrifying, Colorado maintained that it was not necessary to prove, in addition, that a stalker subjectively intended it to be terrifying.40 Counterman argued, as Elonis did before him, that he did not actually intend his statements to be threatening and so was protected by the First Amendment.41
Colorado, supported by amicus briefs from stalking experts, First Amendment scholars, and other states that also used an objective standard, emphasized that stalkers often sincerely believe that their behavior is welcome.42 These delusional beliefs make them more, not less, dangerous to their victims.
While the Court did not go as far as Counterman wanted—which was to require a showing of purpose or knowledge to support a conviction for stalking43—the Court held that the First Amendment did require a showing of recklessness.44 A stalking conviction cannot stand without proof that the actor demonstrated a subjective, conscious disregard of a substantial and unjustified risk that his repeated, objectively terrifying communications would cause serious emotional distress.45
To state the holding more plainly, the Supreme Court declared that stalking is free speech if the stalker truly believes that his repeated, objectively terrifying conduct is welcome. The more deluded the stalker, the more constitutionally protected the stalking.
Given that the conservative supermajority of the Court had already made clear in Dobbs and Bruen that it values women’s lives less than men’s rights—whether to firearms or fetuses—its shameful behavior during the Counterman oral arguments were perhaps to be expected.46 Chief Justice Roberts used actual examples of Counterman’s threatening messages as punchlines, challenging Colorado’s attorney to say them in a threatening way, while Justices Gorsuch and Thomas could barely stop laughing long enough to agree that sensitivity was surely a far graver threat to society than stalking:
John G. Roberts, Jr.: [H]ere’s one of the statements for which [Counterman] was convicted: “Staying in cyber life is going to kill you. Come out for coffee. You have my number.” In what—in what way is that threatening, almost regardless of tone?
Philip J. Weiser: When it’s put into the context, Mr. Chief Justice, what is being said here is, if you don’t come out for coffee with me, bad things are going to happen to you. There’s others—
John G. Roberts, Jr.: Well this is—I’m sorry. This isn’t remotely like that. It says, “Staying in cyber life is going to kill you.” I can’t promise I haven’t said that. (Laughter.) . . . I think that might sound solicitous of the person’s development. I mean, if we’re talking just about what the statements are, how is that—what tone would you use in saying that that would make it threatening?
Philip J. Weiser: The threat in that is, if you don’t come out and meet me, your life’s in danger. . . .
John G. Roberts, Jr.: Okay. Say this in a threatening way. One of the things he was convicted of, it was an image of liquor bottles, and there was a caption, “A guy’s version of edible arrangements.” (Laughter.) . . . Say—say that in a threatening way.47
But in the end, it was not any of the chuckling conservative male Justices who authored the opinion that declared a constitutional right to stalk, but a liberal female Justice who had denounced the conservatives’ selective use of history and tradition to strike down lifesaving firearms regulation48 only a year before she invoked that same history and tradition to strike down lifesaving stalking regulation.49
Stalking is a crime disproportionately committed by men against women,50 and it is such a particularly lethal one that experts call it “homicide in slow motion.”51 Victims rarely seek assistance from law enforcement out of the well-grounded fear of not being taken seriously, and those that do are often ignored.52 In the tiny fraction of reported cases in which law enforcement does choose to intervene, restraining orders, arrests, and convictions can mean the difference between life and death.53 The Counterman decision means that even that flicker of hope will be extinguished in many cases, consigning even more women to potentially lifelong sentences of terror and uncertainty that chills their ability to speak, move, and work freely.54
And what is process that led to this result? Not, as is typical for free speech cases, heightened judicial scrutiny that carefully analyzes the competing state and individual interests at issue in a given speech regulation.55 The majority opinion dispensed entirely with scrutiny analysis and asserted, citing United States v. Stevens,56 that only speech restrictions that belong to “historical and traditional categories long familiar to the bar” are permissible.57 The majority agreed with the parties that stalking laws fall into the narrow exception of “true threats.”58 It concluded, based on its examination of other exceptional categories such as incitement, defamation, and obscenity, that the appropriate mental state required to constitute a “true threat” was the subjective standard of recklessness.59
Never mind that a vast number of speech regulations do not fall into any of the categories singled out by the majority, including laws regulating child pornography, perjury, privacy violations, food and drug labeling, and employment discrimination,60 as well as (as Justice Barrett pointed out in dissent) fighting words and commercial fraud.61 Never mind that recklessness is the standard for defamation only of public figures, not for private individuals,62 or that the Miller test for obscenity explicitly relies on the “reasonable person” standard.63 Never mind, for that matter, that the Supreme Court itself has repeatedly asserted, including in 303 Creative, decided a few days after Counterman, that “a speaker’s motivation is entirely irrelevant” for purposes of the First Amendment.64 The appeal to “history and tradition” covers a multitude of sins, as the liberal Justices do not hesitate to point out except when they are the ones making it.
Justice Kagan’s Counterman majority opinion does for the First Amendment what Justice Thomas’s Bruen majority opinion does for the Second: invests the most antisocial, entitled, dangerous forms of behavior with the greatest constitutional protection to the detriment of the most vulnerable members of society. As I wrote in The Cult of the Constitution, constitutional fundamentalism is not the exclusive province of the right.65 Liberals and conservatives have made the First Amendment into a false idol, dismissing the role of power and privilege in the unequal access to and exercise of free expression. The Counterman decision suggests that when it comes to women’s speech and safety, the more intractable problem with the current Supreme Court is not the forces that divide it, but those that unite it.
Dr. Mary Anne Franks is the Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law at George Washington Law School and the President and Legislative & Tech Policy Director of the Cyber Civil Rights Initiative. Her areas of expertise include First and Second Amendment law, family law, and the intersection of civil rights and technology. She is the author of the award-winning book, The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech (Stanford Press, 2019); her second book, Fearless Speech, is expected in 2024.
Recommended Citation
Mary Anne Franks, Response, Counterman v. Colorado, Geo. Wash. L. Rev. On the Docket (July 28, 2023), https://www.gwlr.org/how-stalking-became-free-speech-counterman-v-colorado-and-the-supreme-courts-continuing-war-on-women.
