Prosecutors must show that a person responsible for threats understood the threatening nature of that speech, justices say
By Ann E. Marimow and Robert Barnes Updated June 27, 2023 at 3:54 p.m. EDT|Published June 27, 2023 at 10:56 a.m. EDT
The Supreme Court on Tuesday reversed the conviction of a man who made extensive online threats to a stranger, saying free speech protections require prosecutors to prove the stalker was aware of the threatening nature of his communications.
In a 7-2 ruling with Justice Elena Kagan writing for the majority, the court emphasized that true threats of violence are not protected by the First Amendment. But to guard against a chilling effect on non-threatening speech, the majority said, states must prove that a criminal defendant has acted recklessly, meaning that he “disregarded a substantial risk that his communications would be viewed as threatening violence.”
Justice Sonia Sotomayor, joined in part by Justice Neil M. Gorsuch, agreed with the outcome but expressed concern about the risk of cracking down on speech that is unintentionally threatening. She worried that the ruling could lead, for instance, to a high school student going to prison for sending another student violent music lyrics.
Justices Clarence Thomas and Amy Coney Barrett dissented from the majority, with Barrett writing that the standard set by the court on Thursday gives “preferential treatment” to a broad range of threatening speech and makes it more difficult for law enforcement to address actual threats.
“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 Court’s decision thus sweeps much further than it lets on.”
The court’s interest involved the question of when statements, especially those made online, can be considered “true threats” not protected by the First Amendment.
Counterman contended that the state must show that the speaker intends the messages to be threatening. Colorado, backed by the Justice Department and a majority of states, says it should be enough that a “reasonable” recipient feel that physical harm could be imminent, on the basis of the context of the circumstances.
The case returns to the lower courts, where prosecutors could decide to retry the matter under the new standards set by the Supreme Court’s decision.
Whalen testified at Counterman’s trial, and told The Washington Post in an interviewLinks to an external site., that she was terrified by Counterman’s relentless pursuit. She said she never knew whether her stalker would be in the crowd at her performances. The worry affected her mental health, caused her to cancel concerts and hampered her career and even caused her for a time to give up performing, she said.
For years, when she blocked Counterman from her Facebook page, which she used to publicize her appearances and her work, he formed new profiles and continued sending the messages.
Whalen eventually sought help from a lawyer, who researched Counterman’s background and told her of his previous convictions. “I was already scared, but then I was terrified,” Whalen said in the interview. “I thought, ‘Why did I wait so long?’”
Among the messages presented at Counterman’s trial:
“I’m currently unsupervised. I know, it freaks me out too, but the possibilities are endless.”
“F--- off permanently.”
“You’re not being good for human relations. Die. Don’t need you.”
The Supreme Court last confronted the true-threats question in 2015, when justices reversed the conviction of a Pennsylvania man Links to an external site.who had made violent and graphic statements against co-workers and his estranged wife. Anthony Elonis said his postings were therapeutic rants. The court found that federal law required more evidence about Elonis’s intent but left the First Amendment question unsettled, opening the door for this lawsuit.
In Counterman’s case, the justices were revisiting the limits of free speech. The majority cited the court’s past rulings in explaining why it shares Counterman’s concerns about deterring or silencing protected types of speech and expression.
“Our decisions have often insisted on protecting even some historically unprotected speech through the adoption of a subjective mental-state element,” Kagan wrote. “We follow the same path today, holding that the State must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character.”
In addition, the majority held that to lose constitutional protections for what they say, speakers must “recklessly” disregard the threatening nature of their speech. That means, Kagan wrote, that the speaker knows that others could consider the statements as threatening violence and makes them anyway.
Sotomayor said she was concerned about overzealous prosecution and for that reason would set a higher bar than recklessness for proving that certain speech is a “true threat.”
“True threats encompass a narrow band of intentional threats,” she wrote. “Especially in a climate of intense polarization, it is dangerous to allow criminal prosecutions for heated words based solely on an amorphous recklessness standard.”
Sotomayor noted that different corners of the internet have “considerably different norms around appropriate speech” and that online posts may lack the usual context clues, such as tone and expression.
A jury’s determination about “when angry hyperbole crosses the line will depend on amorphous norms around language, which will vary greatly from one discursive community to another,” Sotomayor wrote. “Unfortunately yet predictably, racial and cultural stereotypes can also influence whether speech is perceived as dangerous.”
In dissent, Barrett rejected the recklessness standard set by the majority as “not grounded in law.” She listed some potential negative consequences of the court’s ruling, including scenarios in which a person threatens to bomb an airport or to shoot up a courthouse.
“The speaker might well end up barred from the location in question — for good reason,” wrote Barrett, joined by Thomas. “Yet after today, such orders cannot be obtained without proof — not necessarily easy to secure — that the person who issued the threat anticipated that it would elicit fear.”
Kagan acknowledged the competing interests in protecting speech and prosecuting true threats. The court’s approach, she wrote, finds a middle ground by offering “‘enough “breathing space” for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats.”
BY CBS MIAMI TEAM. JUNE 27, 2023 / 11:24 AM / CBS MIAMI
MIAMI - Social media and teens seem to go together like peanut butter and jelly.
And that's not a good thing according to their parents.
A new study by Security.orgLinks to an external site., which looks at security issues facing modern society with a focus on digital safety, found 89 percent of parents support laws requiring children under 18 to obtain parental permission before creating an account.
But that's not all. Not only do parents support legislation aimed at social media and the protection of their kids, but nearly every parent in the U.S. (98 percent) believes social media platforms are dangerous to users under 18; citing TikTok and Snapchat as the most dangerous
More than two-thirds of parents said that kids under nine shouldn't access social media.
Parents also overwhelmingly (91 percent) said they would support laws prohibiting social media from collecting personal data from children.
In addition to 89 percent supporting laws requiring the under-18 set to get parental permission before accessing social media, 85 percent believe they should have complete access to their kids' social media accounts. Their biggest worry is children being exposed to age-inappropriate content.
Meta recently announced it is adding new tools for parents to help monitor their teens' activities on social media. The features include controls on Messenger, so parents and guardians can see how much time their teens spend on the chat tool, view and receive updates on their contacts list, and get notified if their teen reports someone.
Similar supervision tools already exist on Instagram.
Another feature nudges teens to step away from Facebook after 20 minutes. Meta is introducing a similar tool to Instagram, that suggests teens close the app if they're scrolling too long during late hours.
Recently, US Surgeon General Dr. Vivek Murthy recently posted an AdvisoryLinks to an external site. on concerns about the effects of social media and kids' mental health.
1/8/2024 by JESSICA A. MAGALDI and JONATHAN SALES (Opinion)
Almost every U.S. state has enacted criminal laws to protect victims from image-based sexual abuse. Though well-intentioned, the vast majority of them criminalize just a fraction of the behavior they should.
Susanna Gibson’s losing bidLinks to an external site. for the Virginia House of Delegates has largely retreated from the headlines as we enter January and newly elected legislators are sworn in at statehouses around the country. What most people will likely remember about her candidacy, if they remember it at all, is that Gibson was involved in a “sex tape” scandal. The reality is that Gibson was a victim of what is colloquially (and inaccurately) referred to as “revenge porn”—a term that is negatively influencing how this destructive criminal behavior against women is perceived and punished by society.
The term “revenge porn” gives the mistaken impression that the crime should be defined based on whether the perpetrator intended harm.
Videos of Gibson having sex with her husband were anonymously distributedLinks to an external site. before the election without her consent. The videos were reportedly from a voyeuristic website where members livestream sex acts for other members, who can reward the performers with “tips.” The website permitted members to view the videos but prohibited their recording or distribution. Nevertheless, someone recorded the images and distributed them online, both without Gibson’s permission and in violation of the website’s terms of use.
In condemning this behavior, Gibson referred to this violation as “revenge porn,” as many of us do. But “revenge porn” is a misnomer. Not only is the term inaccurate and demeaning to its victims, but using it trivializes the severity of the crime, leading states to pass laws that do not properly protect victims. Most laws criminalizing the non-consensual distribution of intimate images mistakenly focus on the mindset or intent of the perpetrator—the “revenge” in revenge porn.
Regardless of the intent of the perpetrators, the crime is the violation of the privacy of victims, many of whom suffer serious and irreparable harm as a result. Up to 80 percentLinks to an external site. of these incidents do not involve an intent to injure, harass or mistreat the person depicted in the image. Despite no intent to harm, many victims suffer serious and irreparable harm as a result of photos or videos being made public, with consequences including depression, job loss, humiliation among friends and family, and even suicide.
Susanna Gibson’s sex life might be unusual. Or it might be incredibly ordinary. No matter what others might think of her choice to conduct her sex life as she has, Gibson took care to keep it private and shared it only within a prescribed group of her own choosing, by using a website with terms and conditions that required all participants to be consenting adults and forbade any reproduction of the content.
The videos were released without her permission by someone who knew or reasonably should have known that Gibson did not give her consent for them to be shared. The law should not require additional proof that the perpetrator wanted to cause her harm.
Fifty jurisdictions in the United States (48 states, plus Washington, D.C. and Guam) have enacted criminal laws to protect women and other victims from image-based sexual abuseLinks to an external site.. Although these laws may be well-intentioned, our researchLinks to an external site. has found that the vast majority criminalize just a fraction of the behavior they should. The problem is that the laws require the prosecution to prove that the perpetrator intended to harm the person depicted in the images. In Virginia, where Gibson lives, the law requires that the offending photos or videos be released “with the intent to coerce, harass or intimidate.”
Gibson described the timing of the release as “designed to humiliateLinks to an external site.” her. She may be right about that. Should Gibson’s perpetrator be caught and charged under the Virginia law, their behavior could be considered an attempt to harass her in her quest for the state legislature. It is even possible that, as more facts come to light, it could be proven that the perpetrator’s motivation was to coerce her or intimidate her out of running for office.
But irrespective of the motivation for releasing the videos—the details of which are not entirely clearLinks to an external site.—it does appear that they were released in violation of the website’s terms and conditions and, therefore, without Gibson’s consent. This should be the basis of the crime: that the videos were released without her permission by someone who knew or reasonably should have known that Gibson did not give her consent for them to be shared. The law should not require additional proof that the perpetrator wanted to cause her harm.
By criminalizing behavior only where it can be proven that the motivation was to intentionally “coerce, harass or intimidate,” to use Virginia’s terms, such statutes fail to protect the majority of victims.
Such laws, for example, would not protect the victims of Rep. Matt GaetzLinks to an external site., who reportedly shared naked photos of women he had slept with as a point of pride, according to legislators to whom he showed the pictures. Nor would these laws protect the women whose intimate photos were passed around among police officersLinks to an external site. for their enjoyment after the women were stopped on suspicion of DUI.
Indeed, written in this way, the laws would not address any situation where the perpetrator distributed the offending images for any purpose other than an intent to harm the person depicted—including amusing themselves, entertaining their friends or any of the myriad other reasons that anyone has for doing anything in this life.
Regardless of the motivation behind the release of Gibson’s intimate images without her permission, the situation is instructive as to how to craft a law that offers effective protection to survivors of image-based sexual abuse.
States should eliminate the requirement of intent to harm from these laws because, no matter what a perpetrator’s reason for distributing the images, the person depicted is profoundly harmed by their release. Instead, the crime should be defined by the violation of the privacy of the victim, and laws should focus simply on the harm suffered by the victim and the absence of consent from the person depicted.
The race is on for state legislatures across the country to enact consumer data privacy lawsLinks to an external site., which, in the absence of a comprehensive federal law, would provide American consumers with more choice over how companies acquire and utilize their personal data.
Currently, there are nine states – CaliforniaLinks to an external site., VirginiaLinks to an external site., Connecticut, Colorado, Utah, Iowa, Indiana, Tennessee, and Montana – that have comprehensive data privacy laws in place. During the 2022-23 legislative cycle, at least 16 states have introduced privacy bills that address a range of issues, including protecting biometric identifiers and health data. However, this patchwork approach to privacy legislation could pose compliance and liability risks for companies that have multistate operations.
Proposed bills in Illinois, Massachusetts, Minnesota, New York, Pennsylvania, and other states have similar rights to those found in preexisting privacy legislation but differ in implementation and enforcement. The map of state data privacy below shows the status of narrow and comprehensive legislation to help you stay abreast of changing regulatory landscapes.
U.S. states with consumer data privacy laws
Which states have enacted comprehensive privacy legislation?
In the coming years, more states will implement privacy laws to protect consumers from cyber risks and keep competitive with international data regulation, like the EU’s GDPRLinks to an external site. and China’s PIPLLinks to an external site.. At the time of publication, only eight U.S. states have enacted comprehensive consumer data privacy laws, which are detailed below.
California
CaliforniaLinks to an external site. led the charge in being the first state to enact comprehensive data privacy legislation via the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA). CCPA, signed into law on June 8, 2018, and which went into effect on Jan. 1, 2020, establishes privacy rights and business requirements for collecting and selling Californians’ personal information. On Nov. 3, 2020, California voters approved the CPRA, which amended and expanded the CCPA. The CPRA took effect on Dec. 16, 2020 – although most of its CCPA revisions didn’t take effect until Jan. 1, 2023.
Virginia
On March 21, 2021, VirginiaLinks to an external site. became the second state to pass comprehensive data privacy legislation, with the enactment of Virginia Consumer Data Protection Act (VCDPA). The law went into effect on Jan. 1, 2023, and it gives Virginians the right to access their data and request that their personal information be deleted by businesses. It also requires companies to conduct data protection assessments to process personal data for targeted advertising and sales purposes.
Colorado
Joining California and Virginia in the privacy race, Colorado signed the Colorado Privacy Act (CPA) into law on June 8, 2021, and effective as of July 1, 2023. The CPA lays out five key rights for Colorado consumers:
Right to access.
Right to correction.
Right to delete.
Right to data portability.
Right to opt out.
The CPA protects information that can be linked to an identifiable individual and excludes de-identifiable data and publicly available data.
Utah
The Utah Consumer Privacy Act (UCPA), passed on March 24, 2022, protects consumer data collection, deletion, and selling rights. The bill, which takes a business-friendly approach to consumer protection, is effective Dec. 31, 2023.
Connecticut
Connecticut became the fifth state to implement comprehensive consumer privacy legislation on May 10, 2022. The Connecticut Data Privacy Act (CTDPA), effective as of July 1, 2023, includes stronger data protections for children but a similar framework as its predecessors.
Which states have enacted tailored privacy legislation?
Delaware
Nevada
Maine
Michigan
Minnesota
Vermont
Which states have introduced privacy bills in 2023?
Indiana
Iowa
Kentucky
Maryland (biometric privacy)
Mississippi
New Jersey (legislation introduced in 2022 carried over to 2023 session)
New York
Oklahoma
Oregon
Tennessee
Washington (reproductive health privacy)
Authoritative analysis on U.S. consumer data privacy laws from Bloomberg Law
With evolving technologies come new risks and responsibilities. Bloomberg Law’s essential news, expert analysis, and up-to-the-moment intelligence will help you stay ahead of consumer privacy and data securityLinks to an external site. developments across the U.S. and the globe, so you can protect your business.
Previous Module: WEEK 5: JULY 15-21 Flashcards - Law & Reg
