The Supreme Court will soon hear a case on whether the First Amendment protects unintentionally threatening speech. 

The case, Counterman v. Colorado, was brought by a Colorado stalker who was convicted to four and a half years in prison after he sent intimidating messages to a woman on Facebook.

The court will consider whether subjective intent to cause harm is needed to establish a "true threat," or if the objective opinion of a "reasonable observer" is all that is needed.

Supreme Court considers free speech

Over the course of two years, Counterman sent erratic, threatening messages to a woman over Facebook, like "is that you in the white Jeep?" One of the messages told the woman to "die."

A Colorado court convicted Billy Raymond Counterman for stalking. The court followed an objective standard for what constitutes a "true threat."

"True threats" are not shielded by the First Amendment, but courts have disagreed about what the term means.

Counterman's lawyers argue that a "true threat" must have subjective intent and that otherwise, governments could criminalize "misunderstandings," which are particularly common on the Internet in an increasingly "polarized" society.

"The notion that one could commit a 'speech crime' by accident is chilling: Imprisoning a person for negligently misjudging how others would construe the speaker's words would erode the breathing space that safeguards the free exchange of ideas," their brief said.

Slippery slope

In its own brief urging the Supreme Court to reject the case, Colorado argued that Counterman's conviction did not hinge on whether his statements were "true threats," and thus does not implicate the First Amendment, because he also admitted to following the victim.

A number of outside groups including the American Civil Liberties Union have expressed concern about the case's implications for free speech.

Prosecuting speech without a clearly established criminal intent could have a chilling effect, they warn. The online world is full of political speech that is often ambiguous, the ACLU noted.

“Much of this online speech such as public posts on major social media platforms like Twitter and Facebook—is accessible by anyone with an Internet connection, meaning the foreseeable audience is broad, diverse, and likely to interpret the speech in myriad ways the speaker never intended."

The Biden administration has joined the case, which it says may affect "the application of federal prohibitions on threats, including threats against the President and other public officials, as well as Congress’s future ability to proscribe various kinds of threats."