Tuesday, the U.S. Supreme Court ruled in favor of a man who routinely threatened a musician online, noting that in order to secure a conviction, prosecutors must demonstrate that the threat-maker is cognizant of the nature of their communications.

Billy Raymond Counterman, the defendant, who had been found guilty of stalking in Colorado, won the case 7-2. The reason for Counterman’s conviction was the repeated texts he wrote to Coles Whalen, a female musician, with ominous words like “die” and “F*ck off permanently,” which made her fear for her safety.

An objective assessment was used to evaluate whether Counterman’s remarks might reasonably be interpreted as “true threats,” which are not First Amendment-protected speech. Counterman’s attorney claimed during the hearings before the supreme court that the test should put more emphasis on the speaker’s purpose, noting that Counterman did not intend to threaten Whalen.

Although genuine threats of violence are not protected by the First Amendment, the author of the ruling, Justice Elena Kagan, concluded that states must demonstrate that a criminal defendant “disregarded a substantial risk that his communications would be viewed as threatening violence.”

As reported by Forbes:

The court ruled that in order for speech to be considered a “true threat,” it must be shown that the speaker “had some subjective understanding of the threatening nature of his statements,” but it is sufficient to show that the speaker was irresponsible with their comments, rather than intending to cause harm.

The court’s “recklessness standard “offers ‘enough ‘breathing space’ for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats,” Kagan wrote in the court’s opinion, though she acknowledged the compromise ruling means “something is lost on both sides: The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats. But in declining one of those two alternative paths, something more important is gained: Not ‘having it all’—because that is impossible—but having much of what is important on both sides of the scale.”

Both Justices Amy Coney Barrett and Clarence Thomas dissented.

In a dissent supported by Thomas, Barrett stated that she would have maintained the objective test for “true threats” and added that this is now the bar for all other forms of expression not covered by the First Amendment. The court’s decision, according to her, “unjustifiably grants true threats preferential treatment” and “gives short shrift to how an objective test works in practice.”

More on this story via The Republic Brief:

The court’s ruling led to the reversal of Counterman’s conviction and the remand of the case to a lower court for further review. Therefore, if Counterman is found guilty in accordance with the newly established criteria by the Supreme Court decision, there is still a chance that she will be found guilty of stalking. CONTINUE READING…