Bloomberg Law
April 18, 2023, 3:06 PM

Free Speech in Domestic Violence Context Tested at Supreme Court

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson

The US Supreme Court will test the line between encouraging a broad marketplace of ideas and protecting domestic violence victims in a high court sequel on the meaning of “true threats.”

The justices in 2014 agreed to consider what prosecutors must show to punish harmful speech and deprive the speaker of protections under the First Amendment. But the court ultimately dodged the constitutional question in Elonis v. United States by deciding the case on narrower grounds.

The issue is again before the justices in a case set for argument on Wednesday that involves a Colorado man convicted of stalking a local musician on Facebook over a two-year period.

Billy Ray Counterman argues that the First Amendment protects his speech because he never intended for the singer, known as C.W. in court filings, to fear for her safety.

But domestic violence victims and their advocates say Counterman’s standard threatens to give abusers a free pass that could lead to violence.

“The question is where should we draw the line,” said David A. Schulz of the Abrams Institute for Freedom of Expression at Yale Law School. He filed a brief in support of Counterman.

Context Driven

No one argues that “true threats,” which is speech intended to cause a person to fear for their safety, is entitled to free-speech protections.

Like so-called fighting words, obscenity, and libel, there’s an exception for true threats because they lack the social values the First Amendment is intended to protect, said Colorado Attorney General Phil Weiser (D).

“The role of the First Amendment is to protect a marketplace of ideas,” Weiser said. “It’s not to become a form of immunity for people who are harming others by creating fear of physical violence.”

The parties disagree on what must be proved to strip speech of its constitutional protections.

Colorado argues that prosecutors must show that a reasonable person would be fearful after hearing the statements.

It’s a “context-driven inquiry that looks to the nature of any relationship between the person making the threatening statements and the victim, looks to the medium that was used, and looks to the reaction of the individual,” Weiser said.

Counterman argues the test should look to the speaker and whether that person intended to cause fear, which is a concept in criminal law known as specific intent.

Counterman’s attorney, Arnold & Porter’s John Elwood, declined to comment for this story.

Escalating Violence

Legal Director Jennifer Becker of Legal Momentum, an advocacy group for women, said a test that looks only to what the speaker thinks has the potential to allow gender-based violence like stalking or domestic violence.

“If you look at isolated speech or conduct, it’s hard for someone on the outside to appreciate the dangerousness,” Becker said.

She pointed to a person who opens the door to a bouquet of flowers from their abusive ex-partner. “To many people that looks like a romantic overture,” Becker said. But to someone who has experienced abusive conduct and threats, “that would be enough to be wholly traumatizing,” she said. Legal Momentum filed an amicus brief in support of Colorado.

Weiser said that many stalkers escalate threats to physical violence, so the Supreme Court must come up with a rule that allows this kind of speech to be addressed and punished.

Online Speech

David Greene, civil liberties director for the Electronic Frontier Foundation, said casting too wide a net risks ensnaring online speakers who don’t intend their speech to be harmful. EFF filed an amicus brief in favor of Counterman.

Greene said in that scenario, there’s often a gap between what the speaker intended and what the audience hears.

Somebody who makes a statement online “has very little control over who ultimately receives it and it can be disseminated broadly to audiences they never intended to get it,” Greene said.

Moreover, “it can be recontextualized” when it leaves a group of people that have a common jargon and reaches those that don’t share it, Greene said. He pointed to sports communities that may use seemingly threatening language like “give them a beating,” which is innocuous in that context but can be jarring in others.

A rule that criminalizes too much speech can have a chilling effect, which is actually the opposite of what the First Amendment seeks to do, Greene said.

Schulz said a speaker-focused rule still protects against violence and encourages online speech.

Counterman, for example, was found to have repeatedly contacted C.W. over Facebook, including creating new profiles when she blocked others. That repeated and intentional behavior can be powerful evidence that he intended to cause C.W. to fear for her safety, Schulz said.

“It may well be that he can be punished for his behavior,” even under the speaker-focused test, Schulz said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at

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