Only language that is obscene, false or misleading in a commercial context, or that defames or directly incites or provokes violence is unprotected by the wide umbrella of the First Amendment’s free-speech guarantee
, America’s Supreme Court wrote in 1937, is “the matrix, the indispensable condition of nearly every other form of freedom”. Very few types of speech fall outside that sanctuary. . The Supreme Court has over decadesthe boundaries of these categories. But it has never offered a precise account of how to determine when threatening expression crosses the line from protected to proscribable.
As litigants go, Mr Counterman is not particularly sympathetic. Colorado’s brief to the justices recounts the “years of unwanted messages” he sent the musician on Facebook. Some missives she found “distressing” Others were more ominous . And a few were aggressive: “Fuck off permanently”,“Die, don’t need you.” The recipient did not respond to these messages and repeatedly blocked Mr Counterman, but his barrage continued from new accounts, under different names.
But Mr Counterman’s lawyer, John Elwood, says the messages were “at most, heated but non-threatening”. He acknowledged that they harmed the musician’s life and livelihood, but argues that his client’s mental illness made him unaware of coming across as menacing. The conviction, Mr Elwood argues, is therefore “constitutionally invalid”: America’s judiciary has always required solid proof that a speaker intended his expression as a threat for criminal prosecution.
Civil-liberties organisations—including the American Civil Liberties Union , the Cato Institute and the Foundation for Individual Rights and Expression —have rallied in support of Mr Counterman and filed friend-of-the-court briefs on his side. Theworries that anti-stalking laws like Colorado’s could unfairly punish speech just because it is “crudely or zealously expressed” and lead to self-censorship.
But some prominent scholars take the side of Colorado. One brief, co-authored by Erwin Chemerinsky, dean of the law school at the University of California at Berkeley, says that the First Amendment does not protect the right to “engage in a prolonged, objectively terrorising campaign of stalking against another person”. He argues that people like Mr Counterman who are oblivious to the harm they cause are “more, not less, dangerous”.
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