Under Colorado’s stalking law, a person can be charged with stalking for repeatedly contacting, surveilling or communicating with an individual in such a way that a reasonable person would feel serious emotional distress. In June 2020, the Colorado Supreme Court established new criteria for distinguishing between threatening and protected speech in a social media age. The ruling stated that when an alleged threat is communicated online, courts should consider both the words and the context, factoring in the statement’s role in a broader exchange including any surrounding events, the medium, any anonymity and the private or public nature of the statement, the relationship between the correspondents, and the recipient’s reaction to the statement. However, the court declined to consider whether a speaker must have a subjective intent to actually threaten the recipient, because the statute in that case required the government to prove such an intent anyway.
In its ruling in Counterman v. Colorado, the U.S. Supreme Court addressed the subjective standard which the First Amendment requires the government to prove in such prosecutions, holding that the government must show that a speaker acted in reckless disregard of the risk his statements would be viewed as threatening violence. While this does not require the government prove a speaker had a specific intent or desire to make a threat, it does impose a greater burden on the government and provides additional protections for citizens. In weighing in on the case, attorneys for The Rutherford Institute and Cato warned that while protecting people from stalking is certainly a valid concern and may be warranted in this particular case, such broad-reaching laws could empower the government to misinterpret any speaker’s intent and meaning in order to criminalize legitimate political speech that is critical of government officials and representatives.
The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.
The Supreme Court's opinion, appeals court opinion and amicus briefs in Counterman v. Colorado are available at www.rutherford.org.
Source: https://tinyurl.com/5h8crnu8
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