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Criminalizing words is a delicate constitutional business. The courts have only done so in exceptional cases, but on April 19, 2023, the Supreme Court will again examine the constitutional limits on criminalizing words that terrorize. On that day, the court will hear the arguments Counterman against Colorado; The case focuses on the true threats doctrine and speakers’ right to invoke First Amendment protections for speech that puts the target in fear of life and limb.

Beginning in 2014 and for the next two years, Billy Raymond Counterman posted dozens of messages on a local Colorado musician’s Facebook page. The posts, sometimes accompanied by images, clearly indicate a man obsessed with his goal:

“Was that you in the white jeep?”

“I’ve had phone lines tapped before. What are you afraid of?”

“I am currently unattended. I know it drives me crazy too, but the possibilities are endless.”

“How can I take your interest in me seriously when you keep coming back to my rejected existence?”

“Fuck off forever.”

“Your arrogance offends everyone in my position.”

“You’re not good for interpersonal relationships. Die. I do not need you.”

“Staying in cyber life will kill you. come out for coffee You have my number.”

The artist, identified as CW in court documents, alerted law enforcement and received a protective order against Counterman. Eventually he was arrested in May 2016. At trial, CW testified that she was alarmed by Counterman and afraid he would hurt or even kill her. In fact, she canceled a number of performances because she feared for her safety. In 2021, Counterman was found guilty of stalking the CW and sentenced to four and a half years in prison.

Counterman appealed his conviction and defended his Facebook posts as pure speech, which are protected from criminal prosecution under the First Amendment. The state appeals court found that the related posts indicated that Counterman felt compelled to the CW’s attention not only online but also personally. Additionally, in its more agitated submissions, the court found that Counterman demonstrated disregard for his victim’s life. The state court upheld the conviction and ruled that the posts were genuine threats not protected by the First Amendment.

Genuine threats are one of the few categories of speech to which the First Amendment does not provide sanctuary. The First Amendment requires tolerance of fear and hatred. The constitutional philosophy underlying the First Amendment holds that the best cure for bad speech is more speech. The courts have been careful to give the speakers room to breathe, so that the expression of thoughts and ideas can give the idea market a wide berth – that they are the subject of debate and criticism in the hope that false narratives will not succeed . This is of course a somewhat naïve view. Indeed, hatred, misinformation and disinformation thrive especially in this era of isolated political communities. Yet the punishment of such an expression cannot eliminate it; rather, it often simply drives him underground.

The criminalization of genuine threats is not aimed at rude or offensive language; it is not aimed at caustic or hyperbolic language. True threats aren’t just words that intimidate or scare. In fact, threatening language is often used in emotional confrontations, and while it can evoke great fear or anger in the target, it is not terrorizing. The fear induced by a real threat is similar to the fear induced by a physically threatened attack. The target of a person brandishing a fist, gun, or knife will fear for their physical safety. A real threat generates the same kind of panic. This also applies to the most toxic hate speech.

“Terrorizing speech does not contribute to the marketplace of ideas. Terrorizing speeches force the market to contract. ”

In Counterman’s final appeal against his conviction, the Supreme Court will have an opportunity to expand policies that criminalize real threats, finally removing constitutional protections for the most dangerous hate speech. In fact, the Court has supported the prosecution of a speaker whose words incite illegal acts, provoke another with pugnacious language, or slander another, thereby damaging reputation. In these circumstances, particularly when a person is being prosecuted for inciting illegal acts, the Court has established clear guidelines. A speaker can only be penalized for inciting a riot if the speaker intended to incite a riot by choosing words that would encourage a crowd to take illegal action in a fire situation and the speech is likely to incite the crowd to violence.

Policies similar to those used to criminalize speech inciting illegal activity can be used to criminalize the worst types of hate speech. Hate speech should be criminalized when the speaker intends to scare the victim for life and limb by using words that terrorize in context and are likely to cause panic in the target person. This would result in no control of expression by the Big Brother government, so only what conforms to the government’s orthodoxy enjoys First Amendment protection. Instead, an extension of the true threat doctrine would remove the armor of the First Amendment from only the most heinous speech – the one that breeds terror. Removing threatening expressions of any kind, including bullying, stalking or hate, outside of constitutional protections provides balance where little currently exists, and gives even hate targets constitutional breathing space so that they too can enjoy democratic freedoms.

When language has reached a level that is intolerable in a civilized society, failing to differentiate or burden a speaker is more damaging than providing access to the marketplace of ideas. So when the cure of more talk for bad talk isn’t available, or when the utterance is so threatening that its targets, like CW, can’t enjoy the freedoms that democracy affords, the government has the power, undoubtedly the responsibility, to step in and make corrections give. Terrorizing speech does not contribute to the marketplace of ideas. Terrorizing speeches force the market to contract. Intimidated targets will not participate in the Market of Ideas for fear that the Vitriol will only be the cause of real physical harm or death.

The concern that haters and internet stalkers like Billy Raymond Counterman, when they fear prosecution, will be kept cool from tormenting their targets seems to be the crux of the matter. It is logical and fair to withdraw the protection of the constitution and to criminalize statements that aim to do so and actually do so. And it’s about time.

Lynn Greenky is an associate teaching professor at Syracuse University in the Department of Communication and Rhetorical Studies. She teaches a popular undergraduate course on the First Amendment and is the author of the book When freedom speaks. You can follow her on Instagram @lynngreenky and Twitter @LGreenky. Billy Raymond Counterman’s words were so shocking that the Supreme Court got involved

Billy Raymond Counterman’s words were so shocking that the Supreme Court got involved – World Time Todays

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