Last week, the Supreme Court heard a case about a Colorado man, Billy Ray Counterman, who was sentenced to over four years in prison for stalking due to threatening Facebook messages that he sent to a singer named C.W. Counterman argued that the charges violated his speech rights and that his messages were not “true threats,” which is a kind of speech not protected under the First Amendment. The issue in the case is whether or not his messages actually constituted under “true threats” (or if conduct like stalking should be distinguished); and if so, how should courts determine what a “true threat” is? In this episode, we dive into the facts and issues in the Counterman v. Colorado case, the history of “true threats” doctrine under the First Amendment, and recap the oral arguments, including whether the justices might decide that “true threats” should be determined by an objective test, such as if a reasonable person would regard the statement as a threat of violence; or whether they might find that it depends on the speaker’s specific intent. Genevieve Lakier of the University of Chicago and Gabe Walters of FIRE join host Jeffrey Rosen to discuss.
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Today’s episode was produced by Lana Ulrich, Bill Pollock, and Sam Desai. It was engineered by Greg Scheckler. Research was provided by Sam Desai.
Participants
Genevieve Lakier is a professor of law and Herbert and Marjorie Fried Teaching Scholar at the University of Chicago Law School, where she teaches and writes about freedom of speech and constitutional law, including the fight over freedom of speech on social media platforms. She coauthored a brief in support of the respondent, the state of Colorado, in the Counterman case.
Gabe Walters is an attorney at FIRE—the Foundation for Individual Rights and Expression. He joined FIRE after nine years with the PETA Foundation, where he litigated freedom of speech and freedom of information cases in federal and state courts across the country. He and FIRE filed a brief in support of the petitioner, Bill Ray Counterman, in the Counterman case.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Brief of Amicus Curiae Foundation for Individuals Rights and Expression in Support of Petitioner and Reversal, Counterman v. Colorado
- Brief of First Amendment Scholars Evelyn Douek, Genevieve Lakier, and Eugene Volokh in Support of Respondent, Counterman v. Colorado
- Oral argument in Counterman v. Colorado, April 19, 2023 (Audio by C-SPAN; transcript)
TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
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