SCOTUS justices appeared in oral arguments to favor a narrow understanding of what constitutes stalking or harassment in the instance of abusive messages sent over social media. The case, Counterman v. Colorado, concerns threatening messages sent online.
The court heard arguments Wednesday in Counterman v. Colorado, a case concerning threatening messages sent online and whether they could be read as genuine threats. If the text messages are declared not to be actual threats, then they would be protected by the First Amendment. The justices were seeking to determine what criteria were necessary to declare the texts as an actual threat.
Counterman's lawyer, John Elwood, argued that the speaker must have the intent to harm to have his statements defined as a genuine threat and that negligence alone is not enough to declare statements a threat. Justice Sonia Sotomayor said there were conflicting issues in such a case — what a speaker intended and what the audience heard. The jury would have to be the one to sort out such a matter, Sotomayor said.
Counterman echoes the 2015 case Elonis v. United States, which concerned a man who posted revenge fantasies about killing his ex-wife on Facebook. The court threw out the conviction based on relatively narrow grounds but did not answer the constitutional questions presented by Elonis.
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