From Bad to Worse: Cyberstalking, Threats, and Free Speech

Cyber stalking involves repeated, often relentless targeting of someone with abuse. Death and rape threats may be part of a perpetrator’s playbook, but not always. Unwanted communications, intimate privacy violations, and defamation are other weapons. We need to fight cyber stalking to protect victims’ expression and autonomy. The U.S. Supreme Court’s ruling in Counterman v. Colorado, however, makes that much more challenging. At issue was the constitutionality of a man’s conviction for cyber stalking: repeatedly communicating with someone in a manner that would reasonably cause and did cause that person substantial emotional distress. (The defendant was not tried for cyber stalking based on threats.) The Counterman majority announced that to proscribe a “true threat” consistent with the First Amendment, a defendant must have “have some subjective understanding of the threatening nature of his statements.” 

The Counterman decision is flawed along several lines. In its chilling-effects analysis, the Court’s adopted a “one-size-fits-all approach” that is overprotective of speech that lacks affirmative free speech value. A recklessness standard may be appropriate for borderline threats targeting public officials and figures in public discourse because they may involve harsh criticism of political, cultural, or religious leaders. A recklessness standard, however, should not apply to threats made in private communications, as in Counterman, or threats targeting private person about personal matters. Borderline threats in those cases would have scant political, cultural, social, or other normative value. The Court’s chilling-effects calculus also should have considered the cost to victims’ speech interests. The chilling-effects doctrine has “always recognized—and insisted upon ‘accomodat[ing]’—the competing value[]’ in regulating historically unprotected expression,” including the harms to individuals and society wrought by true threats of violence. The majority neither acknowledged nor accommodated that fact that threats create a fear of physical harm that silences victims. 

The majority’s ruling places other roadblocks in cyber stalking victims’ way. Victims will have more difficulty obtaining the assistance of law enforcers. When victims report cyber stalking, law enforcers routinely do nothing, though the law bans cyber stalking, harassment, and threats. Law’s under-enforcement—already at alarming levels— is sure to worsen. If the opinion is given an overbroad reading to require proof of true threats in all cyber stalking cases (regardless of whether threats are involved), then law enforcers will have additional, illegitimate reasons to ignore complaints. If the opinion is read to require recklessness in cases involving threats, law enforcers have a court-approved reason to decline to prosecute.