In a world where online communication is more prevalent than ever, the United States Supreme Court’s ruling in Counterman v. Colorado has become a crucial defense of free speech. The decision, which reversed a conviction based on a defendant’s online messages, underscores the importance of intent when criminalizing speech. It also reinforces constitutional protections against overreach and broad restrictions.
The Case at a Glance
Billy Raymond Counterman was convicted in Colorado for stalking after he sent repeated, unsettling Facebook messages to a local musician. Finding the messages threatening, she reported them to authorities. The case hinged on whether Counterman’s messages constituted “true threats,” something not protected by the First Amendment. His speech, though disturbing, still required proof of intent to threaten or harm before being considered criminal.
As a result, courts should carry out true threat assessments.
Colorado applied an objective standard, meaning that if a reasonable person perceived the speech as a threat, it could lead to criminal liability.
However, SCOTUS disagreed, holding that such a broad standard risks chilling protected speech. Instead, SCOTUS ruled that the government must prove the speaker had some level of intent to be held criminally liable for their words.
I also have to wonder what emotional issues may have been going on behind the scenes. As a Mitigation Specialist, I can’t help but wonder about Autism, ADHD, or other conditions which cause people to make odd, strange, impulsive, or unconventional statements.
Why This Matters for Free Speech
This ruling has pretty big implications on how speech is regulated in digital spaces. By requiring proof of intent, the Court established a safeguard against excessive punishment for speech that may be interpreted differently by different people. This protects individuals from being convicted based on subjective reactions rather than the speaker’s actual state of mind.
Thankfully, the Michigan Court of Appeals is applying the same standard, as you can see here, within In re DMT.
If the ruling had gone the other way, online discourse could have suffered greatly. Activists, comedians, and artists, individuals who frequently engage in controversial or provocative speech, could have been deterred from expressing themselves for fear that someone might find their words threatening.
And some comedians and artists most definitely have felt that way. I saw the amazing Whitney Cummings in person just after pandemic restrictions lifted; she mentioned being worried about free speech in our country, and that comedians were under attack.
Activists of all kinds have been punished for protests, speech, and rallies.
The ruling helps ensure that robust, sometimes uncomfortable conversations can continue without unnecessary legal peril.
Unfortunately, not all courts are accurately interpreting Counterman until the case reaches the Court of Appeals, still resulting in the infringement of people’s rights.
Balancing Protection and Expression
The decision does not mean that all unsettling speech is now beyond legal scrutiny. It simply raises the bar for when speech can be criminalized, ensuring that laws targeting threats do not infringe on First Amendment rights. The challenge remains in finding a balance—protecting individuals from legitimate threats while preserving the ability to speak freely, even in ways that may be unpopular or offensive.
Additional Free Speech Cases
However, Counterman is not the first case to protect controversial speech:
- Thurairajah v. City of Fort Smith (2021), found that even saying, “fuck you” to the police is protected speech.
- Virginia v. Black (2003), Speech must intend to commit a true act of violence to be considered unconstitutional.
Finding Balance, Avoiding Censorship
In Counterman v. Colorado, the Supreme Court reaffirmed a core principle of free speech: the government cannot punish speech solely based on how it is received. Intent matters, and without it, the door to censorship and overreach is left wide open.
As digital communication continues to evolve, this ruling will likely continue to serve as a critical precedent for protecting open discourse in our digital era.
