Supreme Court Puts First Amendment Limits on Laws Banning Online Threats
The case concerned Billy Counterman, a Colorado man who became obsessed with a singer-songwriter, sending her disturbing messages on Facebook.
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By Adam Liptak
Reporting from Washington
June 27, 2023
The Supreme Court ruled on Tuesday that the First Amendment imposes limits on laws that make it a crime to issue threats on the internet, saying that prosecutors must prove that a Colorado man who had sent disturbing messages to a singer-songwriter had acted recklessly in causing emotional harm.
“The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” Justice Elena Kagan wrote for five justices in the 7-to-2 decision.
Justice Kagan acknowledged that “true threats,” like libel, incitement, obscenity and fighting words, are not protected by the First Amendment. But she said the risk of chilling protected speech warranted imposing an added burden on prosecutors.
“The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs — all those may lead him to swallow words that are in fact not true threats,” she wrote.