When Is a Social Media Post a ‘True Threat’?

After Seventh Circuit Judges Frank Easterbrook, William Bauer, and Richard Posner ruled in National Rifle Association of America v. Chicago, 567 F.3d 856 (7th Cir. 2009), rev’d sub nom. McDonald v. City of Chicago, 561 U.S. 742 (2010), that the Second Amendment did not apply to the states, Harold Turner published a blog post declaring that the three judges deserved to die.

Turner wrote that the blood of the judges would “replenish the tree of liberty,” that the judges “didn’t get the hint” sent by a gunman who had murdered the family of another federal judge in Chicago, that they had not “faced REAL free men willing to walk up to them and kill them for their defiance and disobedience,” and that their ruling was “so sleazy and cunning as to deserve the ultimate response.” Turner also posted photographs, work addresses, and room numbers for each of the judges, along with a map indicating the location of the courthouse in which they worked, and a photograph of the building modified to point out “Anti-truck bomb barriers.”

As the U.S. Court of Appeals for the Second Circuit later recounted, when then-Chief Judge Easterbrook learned of Turner’s post, his immediate reaction was “that somebody was threatening to kill me.” The U.S. Marshals Service was notified of Turner’s statements, and he was indicted for “threaten[ing] to assault and murder three United States judges” in violation of 18 U.S.C. § 115(a)(1)(B).

Turner’s case was transferred to the U.S. District Court for the Eastern District of New York. After a jury convicted Turner of threatening to assault or murder the judges, he appealed to the Second Circuit. Turner contended, among other things, that because his blog post “could only reasonably be read[] as political opinion” and not as a true threat of violence, it was protected by the First Amendment.

The Second Circuit affirmed the jury verdict. In United States v. Turner, 720 F.3d 411 (2d Cir. 2013), the circuit court explained that its test for whether conduct amounts to a true threat of violence “is an objective one – namely, whether an ordinary, reasonable recipient who is familiar with the context of the [communication] would interpret it as a threat of injury.” The Second Circuit determined that the evidence was more than sufficient for a jury to conclude that Turner’s statements were violent threats against the judges’ lives. According to the circuit court, the “full context of Turner’s remarks reveals a gravity readily distinguishable from mere hyperbole or common public discourse.”

Conflicting Views

In the years since its decision in Turner, the Second Circuit has reaffirmed that the test of whether a statement amounts to a “true threat” of violence is an objective one. See, e.g., United States v. Wright-Darrisaw, 617 Fed. Appx. 107 (2d Cir. Sept. 23, 2015). Although numerous federal and state courts apply the same standard, see, e.g., United States v. White, 810 F.3d 212 (4th Cir. 2016), others have adopted a subjective test. For example, in United States v. Bachmeier, 8 F.4th 1059 (9th Cir. 2021), the U.S. Court of Appeals for the Ninth Circuit held that “the First Amendment allows criminalizing threats only if the speaker intended to make ‘true threats.’” See also United States v. Heineman, 767 F.3d 970 (10th Cir. 2014) (First Amendment “require[s] the government to prove in any true-threat prosecution that the defendant intended the recipient to feel threatened.”).

Now, the U.S. Supreme Court has agreed to decide the standard that should be used to determine when a statement is a “true threat” unprotected by the First Amendment. People v. Counterman, 497 P.3d 1039 (Colo. Ct. App. 2021), cert. granted, Counterman v. Colorado, No. 22-138 (U.S. Jan. 13, 2023). Given that, as recognized by the Supreme Court itself, cyberspace – and social media sites in particular – are the most important places for the exchange of views today, Packingham v. North Carolina, 137 S.Ct. 1730 (2017), the Court’s decision in Counterman likely will have significant ramifications for social media – and for those subjected to online attacks.

The Case

The Counterman case arose in 2014 when C.W., a singer-songwriter based in Colorado, began receiving “clusters” of messages to her Facebook accounts from a stranger, Billy Raymond Counterman. C.W. deleted some of the messages and did not respond to any of them. She said the messages were “weird” and “creepy.” C.W. blocked Counterman on Facebook multiple times to prevent him from sending her messages, but he created new Facebook accounts and continued to send her messages.

C.W. became “extremely scared” of being hurt or killed after Counterman sent her messages saying that he wanted her to die. After C.W. learned that Counterman was serving probation for a federal offense, she reported him to law enforcement. C.W. obtained a protective order against Counterman and cancelled some of her planned performances because she worried that he would show up at the venues.

Counterman was arrested and charged with one count of stalking (serious emotional distress) under Colo. Rev. Stat. § 18-3-602(1)(c). To convict Counterman of this offense, the prosecution had to prove, beyond a reasonable doubt, that Counterman knowingly “[r]epeatedly follow[ed], approache[d], contact[ed], place[d] under surveillance, or ma[de] any form of communication with [C.W.], . . . in a manner that would cause a reasonable person to suffer serious emotional distress and d[id] cause [C.W.] . . . to suffer serious emotional distress.”

Counterman moved to dismiss, contending that his messages to C.W. were not true threats and, thus, his speech was protected from criminal prosecution. The trial court denied the motion. After trial, the jury found Counterman guilty, and the trial court sentenced him to four-and-a-half years in prison.

Counterman appealed. Among other things, he challenged the constitutionality of his conviction on the ground that his statements were protected speech under the First Amendment, not unprotected true threats. An appellate court in Colorado affirmed, finding that his messages amounted to true threats.

In its decision, the court explained that to determine whether a statement is a true threat, it had to examine the words used and the context in which the statement was made. The court stated that, particularly where the alleged threat is communicated online, the contextual factors to consider included, but were not limited to, the statement’s role in a broader exchange, if any; the medium or platform through which the statement was communicated; the manner in which the statement was conveyed; the relationship between the speaker and recipient(s); and the reaction of the statement’s intended or foreseeable recipient(s).

The court found the messages that told C.W. to “die” or to “[f]uck off permanently” to be the most troubling. The court added that although these messages did not explicitly threaten C.W.’s life, they implied a disregard for her life and a desire to see her dead.

Additionally, the court found that other messages, such as “[s]eems like I’m being talked about more than I’m being talked to” and “[y]ou do not talk,” reflected a feeling of entitlement to C.W.’s response or engagement that, when met with silence, turned quickly to hostility toward her.

Moreover, the court continued, the messages that referenced surveilling or watching C.W., such as “[w]as that you in the white Jeep?,” “[o]nly a couple of physical sightings,” “a fine display with your partner,” and “tell your friend to get lost,” were troubling because they amounted to an “escalation” and implied that the contact was not just over Facebook, but also in person.

Next, the court noted that there were details that heightened the credibility of Counterman’s threats. For example, the references to surveilling C.W. – particularly to seeing her with her partner or friend and the white Jeep – indicated that Counterman may have had a familiarity with C.W. gained from secretly watching her. These details added to the threat implied in Counterman’s messages.

The court next considered the context of Counterman’s statements, noting that his messages to C.W. were uninvited and that C.W. did not send any messages back or engage in a conversation with him. The court pointed out that despite this, he continued to send messages to her for years.

The court also reasoned that when met with being blocked, an action that communicated that C.W. did not wish to be contacted by him, Counterman ignored it and created other accounts, frustrating her efforts to block his communications. In the court’s opinion, his actions supported an inference that he sent messages to C.W.’s Facebook accounts knowing that they would cause an emotional response. Indeed, C.W.’s reaction was one of “escalating alarm and fear of Counterman.”

Given this context, the court concluded that Counterman’s messages were true threats and “not protected speech under the First Amendment.”

In coming to this decision, the Colorado court recognized the “competing concerns that ‘[s]ocial media make hateful and threatening speech more common but also magnify the potential for a speaker’s innocent words to be misunderstood.’” However, the court also pointed out that although “[t]he risk of mistaking protected speech for a true threat is high,” so too are the “stakes of leaving true threats unregulated,” recognizing the danger that online threats can pose.

Conclusion

Counterman’s petition for certiorari argued that proof of a true threat requires “proof of a subjective intent to threaten,” and that it is not enough that an “objectively reasonable person would view [the] message as [a] serious expression of intent to harm.” In separate amicus briefs supporting Counterman’s position, both the Cato Institute, a public policy research foundation, and The Rutherford Institute, a nonprofit civil liberties organization, contended that a “true threat” must be both objectively threatening to a reasonable listener and subjectively intended as such by the speaker.

In its brief in opposition, Colorado argued against requiring proof that the speaker subjectively knew or intended the threatening nature of the statement. Instead, the state urged the “context-driven objective test” that the Colorado appellate court used in Counterman, which has also been applied by the Second and Fourth Circuits, among other courts. The state contended that a context-driven objective inquiry recognizes that true threats are unprotected by the First Amendment because of the substantial harm they create, “harm that does not turn on the defendant’s mental state.”

The state noted that the internet “has provided a particularly effective tool for complete strangers to gain previously unavailable access to their victims” and that stalkers “often engage in a course of conduct that, taken in context, causes reasonable persons to fear for their physical safety.” The state’s brief declared that Colorado’s anti-stalking statute, combined with a context-driven objective test for assessing true threats, “ensures that constitutionally protected speech remains unimpeded while protecting victims, such as [C.W.], who become targets of stalkers.”

Argument in Counterman is set for Wednesday, April 19, 2023. How the Supreme Court resolves this issue will undoubtedly affect speech on social media platforms, such as Facebook and Twitter, and the ability of prosecutors to charge defendants with “true threat” crimes based on statements made using those platforms. As the Colorado appellate court recognized, this is particularly important, given the recent, widely reported cases of online harassment and stalking of public figures, particularly of women. These incidents involved internet users who were “strangers to the victims” and who were able to gain previously unavailable access to their targets through social media.

Reprinted with permission from the February 21, 2023, issue of the New York Law Journal^©, ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.