Supreme Court ruling in stalker case potentially weakens Trump prosecution angle

 June 29, 2023

A Supreme Court ruling this week may end up weakening efforts by prosecutor Jack Smith to indict Donald Trump over his stolen election rhetoric. 

In a lopsided 7-2 decision, the court raised the bar to convict people of making threatening statements. The case, Counterman v. Colorado, dealt with a mentally ill stalker who sent intimidating messages to a woman online.

The court was asked to weigh what constitutes a "true threat" and what speech is protected under the First Amendment.

Supreme Court rules on threats

The defendant's lawyers argued their client did not subjectively understand what he was doing.

They warned that adopting a "reasonable observer" standard for establishing threats could have a chilling effect on speech, and the court agreed.

"The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence," Justice Elena Kagan wrote for the majority. "The State need not prove any more demanding form of subjective intent to threaten another."

Trump win?

Obviously, concerns about chilling speech are heightened when the subject is an American president.

Lawfare, a far-left blog that specializes in - yes - liberal lawfare, conceded that the court's ruling in Counterman made it even harder to hold Trump criminally liable for his free speech. The piece noted that the Supreme Court unanimously agreed that intent is a necessary element in "incitement" cases.

As Kagan put it, the government must show intent to ensure prosecutions do not "bleed over, either directly or through a chilling effect, to dissenting political speech at the First Amendment’s core."

The libs at Lawfare begrudgingly agreed that, absent "smoking-gun" evidence of Trump clearly announcing his intent to cause violence, any prosecution for incitement would be an uphill battle.

Trump's rhetoric was undoubtedly fiery, but he never issued threats, and even urged supporters to march to the Capitol "peacefully" and "patriotically."

Not all hope lost

But all hope is not lost for the communist left.

In a separate ruling this week, the Supreme Court implicitly rebuked Trump and the so-called "independent state legislature" theory that he used to challenge the 2020 election.

Some believe Smith could lean on the ruling in Moore v. Harper to charge Trump with a crime for appointing "fake electors." In the meanwhile, Smith is continuing to pursue a political witch hunt under the Espionage Act.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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