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Rutherford Institute Warns Against Giving the Government a Green Light to Chill Political Speech on Social Media

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Published on: October 23, 2022

WASHINGTON, D.C. — The Rutherford Institute has asked the U.S. Supreme Court to prevent the government from criminalizing non-threatening political speech that may be annoying, embarrassing, or unpleasant.

In an amicus brief filed in Counterman v. Colorado, Rutherford Institute attorneys warned against the ramifications of allowing the government to use overly broad stalking laws to treat expressive activities on social media as threats without having to prove that the messages are both reasonably understood as threatening an illegal act and intended by the speaker as a threat.

“The government must not be given the power to criminalize speech it deems distasteful or annoying,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Nowhere in the First Amendment does it permit the government to limit speech in order to avoid causing offense, hurting someone’s feelings, safeguarding government secrets, protecting government officials, discouraging bullying, penalizing hateful ideas and actions, eliminating terrorism, combatting prejudice and intolerance, and the like.”

Under Colorado’s stalking law, a person can be charged with stalking for repeatedly contacting, surveilling or communicating with an individual in such a way that a reasonable person would feel serious emotional distress. In June 2020, the Colorado Supreme Court established new criteria for distinguishing between threatening and protected speech in a social media age. The ruling stated that when an alleged threat is communicated online, courts should consider both the words and the context, factoring in the statement’s role in a broader exchange including any surrounding events, the medium, any anonymity and the private or public nature of the statement, the relationship between the correspondents, and the recipient’s reaction to the statement—however, the Court specifically declined to consider whether the speaker had any intent to actually threaten the recipient.

In 2016, Billy Counterman was charged with stalking after he sent Facebook messages to a Denver musician’s private and public accounts over the course of two years. Although none of the messages explicitly threatened any illegal act or harm, the musician interpreted the messages as threats and sought a protective order against Counterman. Counterman was subsequently found guilty of stalking and sentenced to four-and-a-half years in prison for his online messages. On appeal, Counterman argued that the Colorado law is overbroad because it does not require speech to be a true threat in order to be criminally punished. However, the Colorado Court of Appeals ruled against Counterman, with the judges analyzing his messages for hidden meanings or subtext. Although the U.S. Supreme Court has ruled that “true threats” are not protected by the First Amendment, there is growing dissonance about how to determine what constitutes a true threat on social media. In weighing in on the case, Rutherford Institute attorneys warn that while protecting people from stalking is certainly a valid concern and may be warranted in this particular case, such a broad-reaching law and speculative analysis could empower the government to misinterpret any speaker’s intent and meaning in order to criminalize legitimate political speech that is critical of government officials and representatives.

Amicus brief: Counterman v. Colorado

Court of Appeals Opinion: Counterman v. Colorado

Article posted with permission from John Whitehead

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