(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . Today, "Die. Don't need you." isn't threatening enough [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.'] Date: 2023-06-27 Today was a mixed bag in terms of news from our teetering Supreme Court. The good news was very good; if the Court had bought into the “independent state legislature theory” in Moore v. Harper, gerrymandering and other shenanigans in red states would have become effectively impossible to combat. But this story isn’t about the good news. It’s about the bad news. And the bad news is a case called Counterman v. Colorado. Billy Raymond Counterman is a deeply troubled man. Already having been convinced for sending threatening communication in a prior case, he moved on to obsessively target Denver-area singer-songwriter Coles Whalen, who he had never met. Counterman sent her ever-increasing messages, primarily on Facebook. Initially, Whalen described them as “weird” and “creepy”, but as the years passed and Counterman’s obsession continued, they became more and more suggestive of violence. Whalen blocked him, repeatedly, only for Counterman to re-emerge in an endless parade of sockpuppet accounts. Eventually, Counterman’s messages began to imply that he had been personally present at Whalen’s events (evidence, generally speaking, suggests that wasn’t actually true), and advocated outright for her death, with messages such as these two: Fuck off permanently. You’re not being good for human relations. Die. Don’t need you. Whalen, understandably, feared for her life and safety. She started to carry a gun. She cancelled appearances. Ultimately, she abandoned her career in Denver entirely, fleeing to the East Coast in an effort to evade what seemed to be a potentially violent stalker. And when she finally got the legal system involved, everyone agreed that was exactly what Counterman was. A potentially violent stalker who had disrupted the life of a stranger through “true threats” (which already have their own tight legal requirements) made for no apparent reason. Well, almost everyone… Counterman appealed his stalking conviction all the way to SCOTUS, on the grounds that he had not intended any of his communication to be threatening and, therefore, it was protected under First Amendment grounds. You know where this is going, don’t you? In a 7-2 ruling with a messy arrangement of justices, the Court found more or less in Counterman’s favor. The crux of the ruling is this: Colorado had employed a “reasonableness” test to determine if Counterman’s threats were, um, threatening enough, legally speaking. Would a reasonable observer, taking the statements in context, view them as threatening? That reasonableness standard is dead now, replaced with a recklessness standard that requires “a speaker is aware ‘ that others could regard his statements as’ threatening violence and ‘delivers them anyway’” per Justice Elena Kagan. She continued: “The rule we adopt today is neither the most speech-protective nro the most sensitive to the dangers of true threats. But in declining one of those two alternative paths, something more important is gained: Not ‘having it all’ — because that is impossible — but having much of what is important on both sides of the scales.” I, like Justice Amy Coney Barrett, respectively disagree. This recklessness standard will make it more difficult to stop violent-seeming harassment from people who, for whatever reason, do not clearly understand the impact of their words. It will also make it more difficult to prosecute the worst of the trolls, the extremely online residents of 4chan, Kiwi Farms, and their ilk, who are almost certainly aware of the impact of their statements, but who will fight and die on the hill of claiming that it was “all a joke”, just “for the lulz” and not meant to be taken seriously. For more on this story, see: CNN, SCOTUSblog, Washington Post. [END] --- [1] Url: https://www.dailykos.com/stories/2023/6/27/2177988/-Today-Die-Don-t-need-you-isn-t-threatening-enough Published and (C) by Daily Kos Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/dailykos/