ACLU Commends SCOTUS Ruling that Not All Threats Necessarily Criminal

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By The Vanguard Staff

WASHINGTON, DC – The U.S. Supreme Court said Tuesday true threats—not just words that appear to be threatening—are necessary for criminal prosecution, in a ruling praised by the ACLU.

“We’re glad the Supreme Court affirmed today that inadvertently threatening speech cannot be criminalized,” said Brian Hauss, senior staff attorney with the American Civil Liberties Union’s Speech, Privacy, & Technology Project. 

Hauss added, “In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received. The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

Under the ruling, explained the ACLU, the “First Amendment requires the government to prove that the defendant acted with a culpable mental state, and not merely that his words were objectively threatening.”

“Colorado law allowed individuals to be convicted if a reasonable person would perceive their words as threatening, regardless of the speaker’s intent. Today’s decision rules that the First Amendment requires the government to show at a minimum that the defendant recklessly disregarded a substantial risk that his words could be perceived as threatening,” a statement released by the ACLU noted.

“The court holds that a recklessness standard strikes the right balance between free expression and safety, ‘offering ‘enough “breathing space’ for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats,” the group stated.

The petitioner, Billy Raymond Counterman, sent allegedly threatening messages to C.W., a professional musician in Colorado, over a two-year period, and Counterman was prosecuted and convicted under Colorado’s anti-stalking statute. 

But, on appeal, Counterman—diagnosed with a mental illness—and the ACLU said his conviction was “unconstitutional because the jury was not required to find that he intended to threaten C.W.”

The ACLU and its partners filed an amicus brief claiming a “great deal of speech — including political speech, satire, and artistic speech — contains overt or implicit references to violence that could be interpreted as threatening.”

And, without “requiring some element of intentional wrongdoing, there exists a significant risk that people will be convicted of serious felonies because they failed to adequately anticipate how their words would be perceived,” argued the ACLU in Counterman v. Colorado. 

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