|Suzanne La Pierre
Mischaracterizing headlines and opinion pieces depicted the court's decision in Counterman v. Colorado as making it harder for the government to prosecute stalkers and domestic abusers.
This is an extreme oversimplification of the case and misses the actual question the court was grappling with: When is it OK for the government to prosecute someone for speech?
In contrast to the prevailing media narrative, the Counterman decision's principal flaw was its failure to go far enough in protecting individuals' First Amendment right of free speech.
This failure could have profound implications for children in particular — inveterate users of social media and text-based communications — with the potential to worsen the mass incarceration crisis.
In Counterman, the court held that the "true threats" exception to First Amendment protection cannot be invoked to impose liability on a speaker solely based on the effect of his speech on the listener.
In the underlying case, Billy Counterman, who was diagnosed with a mental illness, was convicted of stalking under a Colorado statute based on his continuous unwanted messages via social media over a several-year period that the targeted recipient perceived as threats of violence.
The statute did not include any intent requirement on the speaker's part. To avoid the dangers of self-censorship and the potential for chilling fully protected speech for fear of liability, the court held that the speaker must also be shown to have "some understanding of his statements' threatening character."
The appropriate intent standard, the majority concluded, was a showing of recklessness. Because the Colorado statute failed to include this intent standard, the court vacated Counterman's conviction and remanded the case.
As Justice Sonia Sotomayor correctly explained in her concurring opinion — joined in this part by Justice Neil Gorsuch — unintentionally threatening language should not be the basis for liability, especially in criminal prosecutions.
Only in situations where the challenged speech is offered to support a civil proceeding, such as a temporary restraining order or even a school suspension, might the countervailing safety considerations justify use of the lower recklessness standard.
The punishment in those settings is limited to imposing movement restrictions on the speaker, requiring them to stay away from an individual or remove themselves from a group, usually for a limited period of time.
But even in those situations, the concurrence is correct that recklessness should be assessed according to the high bar established in the Supreme Court's 1964 decision in New York Times Co. v. Sullivan, the defamation case the majority relied upon in adopting its standard: The speaker must have a "high degree of awareness that a statement was probably threatening."
But in the criminal context, where a true-threat determination can result in the loss of one's liberty through imprisonment — solely based on one's speech — the standard must be higher.
Specific intent to communicate a threat must be demonstrated for criminal sanctions to apply. In other words, wrongdoing must be conscious to be criminal.
As noted by the concurrence, the recklessness standard is insufficient in this setting. It is nothing more than the rejected objective test masquerading as an intent determination.
Particularly when the challenged speech reflects fringe views or is threatening on its face — those instances where First Amendment protection is most critical — it will be the rare individual who will not curb their intended speech out of fear that at least one member of the audience would reasonably feel threatened.
This impermissible chilling effect, as Justice Sotomayor noted, "further buttress[es] the conclusion that true threats should be limited to intentionally threatening speech."
Online speech is particularly vulnerable to overcriminalization under a recklessness standard because of the lack of tonal or visual cues available in face-to-face interactions, the pervasiveness of racial and cultural stereotypes, the unchecked dissemination of online communications to unintended audiences, and the lack of universal norms both across social media platforms and between diverse populations of internet users.
Under this lower standard, the concurrence rightly points out that a high school student "could easily go to prison" for forwarding violent lyrics to another student or "unreflectingly using language" copied from an online forum.
One-off comments of adolescents in online gaming with their peers, as well as retweets or other social media postings where the speaker is simply forwarding speech they have received, when analyzed in the absence of the transmitter's specific intent, risks exposing them to criminal prosecution and potential incarceration for what should be protected speech.
Such outcomes exacerbate an ongoing human rights crisis in the U.S.: the mass incarceration of children prosecuted as adults.
A recent report by Human Rights for Kids revealed that there are more than 32,000 people in U.S. prisons for crimes they committed as children.
Roughly one-third of these children were sentenced to life or de facto life sentences. The remaining children are sentenced, on average, to 14½ years in adult prison.
Almost all of them are immediately incarcerated in adult jails or prisons. They are often beaten, raped and emotionally harmed in ways that few can even begin to imagine.
For their protection, they are placed in solitary confinement — another form of state-sanctioned child abuse — which further damages their emotional and psychological development.
It is estimated that approximately 53,000 children are charged in adult criminal courts annually. In some states, like Texas, Georgia and Wisconsin, 17-year-old children are prosecuted as adults, no matter what crime they're charged with, including those that involve true threats. Other states, like Florida, give discretion to prosecutors on whether to charge a child as an adult for cases involving true threats.
But even if a child's case remains in juvenile court, it can have a profound impact on them.
For example, last year, a 10-year-old boy from Cape Coral, Florida, was charged with a felony after sending a text to friends that he said was a joke about guns and money, but law enforcement perceived as a threat.
The local sheriff decided to "perp walk" the fifth grader from his local elementary school while livestreaming it on Facebook, drawing international condemnation. The trauma of being led away from his elementary school in handcuffs will stay with this child his entire life.
Data also shows an increased likelihood for system involvement the younger a child enters the system. If every child is hauled into court to answer for reckless speech that was never intended as a threat, our mass incarceration problem will inevitably get worse.
While the court reached the correct decision in striking down the Colorado statute, the amorphous recklessness standard adopted by the majority cannot protect unintentionally threatening speech from prosecution in other cases.
It is also not susceptible to uniform standards or application. Should a 10-year-old child, with their associated cognitive immaturity, be subject to the same recklessness standard as a cognitively mature adult? How can one distinguish a permissible jest or hyperbole from a constitutionally prohibited true threat without investigating the speaker's intent?
A recklessness standard will not suffice in answering these questions, particularly when one ill-advised or distasteful social media post can land someone in prison for several years.
Requiring prosecutors to demonstrate that an individual actually intended to threaten another is not too high a burden when one's constitutional rights and freedom are on the line. Our society's cherished commitment to free expression and protection of our core liberty interests demands no less.
Adam Pollet is a partner at Eversheds Sutherland.
Suzanne La Pierre is a member of the board of directors at Human Rights for Kids.
Disclosure: Pollet co-authored an amicus brief in Counterman v. Colorado on behalf of Human Rights for Kids.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email firstname.lastname@example.org.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 New York Times Co. v. Sullivan , 376 U. S. 254, 280 (1964).
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