In a stunning plot twist that shocked absolutely no one who has passed a basic civics class, the Supreme Court ruled on Friday that the federal government may not forbid Americans from publicly encouraging people to break the law unless those encouragements are both intentional and likely to produce imminent lawless action. In a 6-3 decision marked by a rare flash of legal clarity, the justices effectively told federal prosecutors to please stop confusing edgy provocation with actual crimes.
The case in question involved a man named Billy Raymond Counterman, who apparently interpreted the First Amendment as a license to send dozens of disturbing Facebook messages to a musician he had never met. The messages ranged from vaguely unsettling to outright menacing, prompting concern for safety and, eventually, criminal charges under Colorado’s anti-stalking laws. However, Counterman argued that he was merely expressing himself, albeit in the style of a horror movie villain with poor grammar.
The Court’s majority opinion, written by Justice Elena Kagan, leaned heavily into the idea that intent matters, particularly when it comes to free speech. Kagan explained that criminal prosecutions based on threatening speech must show some form of intent, rather than being based solely on how scared the recipient felt. In other words, a judge must do more than count the number of exclamation points in the message.
“The question is whether a reasonable person would see these statements as threats,” Kagan wrote, before essentially concluding that defendants should at least be aware that they are being terrifying. She stopped short of suggesting that we all take a moment to re-read our Facebook posts under dim lighting, but the implication was there.
Not everyone was thrilled with this interpretation. Justice Clarence Thomas dissented with vigor, arguing that the decision lets potential stalkers off the hook so long as they manage to maintain plausible deniability. Meanwhile, Justice Amy Coney Barrett wrote her own dissent, noting that requiring proof of subjective intent makes it harder to protect victims of harassment. Or, as she might have put it if judicial opinions were written in emoji, this is not fine.
The ruling tightens the leash on how state and federal prosecutors can go after online harassment, and confirms that the First Amendment continues to be a particularly stubborn guest at the dinner party known as public discourse. Which is to say you might be able to say absolutely anything, so long as you have not quite meant it.
The Supreme Court has spoken, and apparently the First Amendment has a stronger Wi-Fi signal than expected.