Last week, the Supreme Court heard a case about a Colorado man, Billy Ray Counterman, who was sentenced to over four years in prison for stalking due to threatening Facebook messages that he sent to a singer named C.W. Counterman argued that the charges violated his speech rights and that his messages were not true threats, which is a kind of speech not protected under the First Amendment. The issue in the case is whether or not his messages actually constituted under true threats (or if conduct like stalking should be distinguished); and if so, how should courts determine what a true threat is? In this episode, we dive into the facts and issues in theCounterman v. Colorado case, the history of true threats doctrine under the First Amendment, and recap the oral arguments, including whether the justices might decide that true threats should be determined by an objective test, such as if a reasonable person would regard the statement as a threat of violence; or whether they might find that it depends on the speakers specific intent.Genevieve Lakierof the University of Chicago andGabe Waltersof FIRE join hostJeffrey Rosento discuss.

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Todays episode was produced by Lana Ulrich, Bill Pollock, and Sam Desai. It was engineered by Greg Scheckler. Research was provided by Sam Desai.

Participants

Genevieve Lakieris a professor of law and Herbert and Marjorie Fried Teaching Scholar at the University of Chicago Law School, where she teaches and writes about freedom of speech and constitutional law, including the fight over freedom of speech on social media platforms. She coauthored a brief in support of the respondent, the state of Colorado, in theCountermancase.

Gabe Waltersis an attorney at FIREthe Foundation for Individual Rights and Expression. He joined FIRE after nine years with the PETA Foundation, where he litigated freedom of speech and freedom of information cases in federal and state courts across the country. He and FIRE filed a brief in support of the petitioner, Bill Ray Counterman, in theCountermancase.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

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What are True Threats Under the First Amendment? - Podcast ... - National Constitution Center