“Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people.” Ashcroft v. ACLU, 542 U.S. 656, 660 (2004). The Constitution’s protection of free speech is accordingly at its highest when government attempts to prosecute someone for his or her words. Although the Supreme Court has recognized exceptions to that bedrock rule, it has equally recognized that such exceptions must be clearly delineated and narrowly circumscribed to avoid chilling protected speech. Nonetheless, the state of the law with respect to the exception at issue—which allows the state to impose criminal liability for “true threats”—fails to adequately guard against that concern.
The decision below is a regrettable consequence of that confusion. Billy Counterman was tried, convicted, and sentenced to prison for four and a half years for sending a series of admittedly abrasive online messages to a local musician, even though the state never proved that he actually intended any of his statements to be threatening. The Colorado Court of Appeals affirmed Counterman’s conviction, holding that the “true threats” exception to the First Amendment required only an “objective” standard, meaning that the defendant’s actual mental state was irrelevant to any criminal prosecution.
Cato, joined by the Rutherford Institute, filed a brief in support of Counterman before the Supreme Court to address two primary points. First, in the Supreme Court needs to emphasize that the “true threats” exception, just like obscenity, defamation, incitement, and other exceptional categories of unprotected speech, is an exceedingly narrow carveout from the constitutional norm. The First Amendment favors more speech, not less, and the government bears a heavy burden when it seeks to proscribe categories of speech. To keep the “true threats” exception narrow, the Court should confirm what its decisions already suggest: For the exception to apply, the targeted speech must be both objectively threatening and subjectively intended as a threat. Second, requiring that “true threats” be both objectively threatening and subjectively intended as threats is essential to prevent chilling a wide swath of protected speech. This concern is especially heightened in this case, which involves online speech. The nation is undergoing a communications revolution, driven by unprecedented new forms of online expression—and unprecedented new attempts by government to monitor and restrict such expression.
