Supreme Court sets higher bar for prosecuting threats under First Amendment

who was convicted of a crime after sending numerous threatening messages to a woman on Facebook, with the justices raising the bar for establishing when a statement is a"true threat" not protected by the First Amendment., with Justices Clarence Thomas and Amy Coney Barrett in dissent. The court wiped away a Colorado Court of Appeals' ruling that upheld the conviction of Billy Counterman and sent the case back for further proceedings consistent with its opinion.

Counterman was prosecuted under a standard requiring the state to show only that a"reasonable person" would understand the messages as threats. The majority found that violated the First Amendment. "A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her," Barrett wrote.

The case arose from hundreds of Facebook messages Counterman sent to Whalen between 2014 and 2016. Some of the messages were innocuous, while others were more troubling. Whalen tried to block Counterman, but he created multiple accounts to continue sending them.In one, Counterman wrote,"F**k off permanently," while in another, he wrote,"I've tapped phone lines before.

Conviction under the law requires proof that the speaker"knowingly" made repeated communications, and does not require the person to be aware that the acts would cause"a reasonable person to suffer serious emotional distress."

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