We The People: Supreme Court will soon decide potential limits of some online speech

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: No. 65: What are three rights of everyone living in the United States?

When the Founding Fathers penned the U.S. Constitution, they established certain unalienable rights for American residents.

The Bill of Rights ensures the freedom of religion, expression and assembly. It also protects peoples’ freedom to petition the government, to bear arms and their right to freedom of speech.

While those rights may be unalienable (can’t be taken away), they can come with limitations.

“For each one of those rights, there could be multiple numbers of rules and exceptions to the rules and exceptions to the exceptions,” said Shaakirrah Sanders, a law professor at the University of Idaho.

Earlier this year, the U.S. Supreme Court heard arguments in Counterman v. the state of Colorado, a case that could test the limitations of freedom of speech.

In 2016, Billy Raymond Counterman was sentenced to 4½ years in prison on one count of stalking and one count of harassment after repeatedly sending a Colorado musician threatening and flirtatious messages over Facebook. The messaging began in 2014, and continued for years through different accounts Counterman created to get around her attempts to block him. Some messages implied that Counterman was watching her, that he wanted her to die and that he was going to kill her, according to court records.

Now, Counterman is asking the Supreme Court to overturn his conviction on the grounds those charges violated his First Amendment rights. Counterman believes his messages should not be considered a “true threat,” speech that is unprotected by the First Amendment.

“So for some time, First Amendment doctrine was very clear that you could not use your speech rights to threaten people,” Sanders said. “That’s been one of the classic exceptions to the First Amendment.”

Sanders said speech directed at inciting violence and defamatory speech are also not protected by the First Amendment. The courts have fleshed out the parameters for what speech falls into those unprotected categories over decades of rulings.

Counterman’s argument is that he had no knowledge his speech would cause fear, especially given the online nature of his messages, and therefore the conviction should be overturned because it can not be considered a “true threat.”

In his opening statement to the Supreme Court in April, defense attorney John P. Elwood said Colorado had a burden to prove Counterman’s intent.

The central question before the Supreme Court is if the government must show the speaker subjectively knew or intended the threatening nature of the statement. That’s what would establish a statement is a “true threat” unprotected by the First Amendment.

Sanders said it will be the first time the Court has issued a decision on what constitutes a threat in recent memory, but added the decision might not hinge on the burden of proving a speaker’s intent at all.

“It’s curious what the court will actually determine in this case,” Sanders said. “Is it that the way the statute is written somehow does or does not come into contact with the First Amendment, such that you never really get to the question of whether the actual statements may be a true threat?”

If the Supreme Court’s decision hinges on the way the Colorado statute is written, Sanders said it could trigger the redrafting of similar statutes nationwide.

“That of course, opens the door and creates opportunity for online users and businesses to lobby for different definitions that perhaps decreases their liability, whether you’re hosting the site or if you’re using the site,” Sanders said.

The decision also could change how online threats are prosecuted in the U.S. Sanders said it could lead to more convictions of similar online harassment cases if the Supreme Court upholds Counterman’s conviction and the Colorado statute.

“Perhaps we get some clarification from the Court on what you have to show to be able to prosecute online,” Sanders said.

Sanders said it is unclear whether this is the Supreme Court’s attempt to step into the debate around online discussion.

If the decision leads to more criminal convictions of online speech, Sanders said she hopes states are aware of the potential impacts that could have on the First Amendment rights of African Americans and other minority or disadvantaged groups.

“We know African Americans are overly investigated for criminal behavior. We know they’re overly prosecuted and overly sentenced in terms of statistics,” Sanders said. “So I do wonder, for states like Colorado that want to go after online behavior, if there will be racial disparities in the same way we see in my area of criminal law and procedure.”

The Supreme Court is expected to issue a ruling on Counterman v. Colorado in the next several weeks.