This time even the Supreme Court of the United States “liberals” got it wrong. On June 27, in a 7-to-2 ruling reversing a lower court’s decision in Counterman v. Colorado, SCOTUS prioritized so-called “free speech” over protecting millions of victims of stalking – primarily women and gender-oppressed people.
According to Colorado Public Radio, Billy Raymond Counterman targeted Colorado singer Coles Whalen for years on Facebook, with thousands of messages describing “physical sightings” he had of her, and angry expletive-filled threatening messages, including telling her to “die.” (tinyurl.com/47xmr4v7)
Whalen wasn’t Counterman’s first victim. He had been arrested for threatening two other women, saying he would “bash their heads in” and “rip their throats out.” Yet with the court’s new ruling, such threats would be perfectly acceptable because the “Free Speech Clause of the First Amendment requires proof of intent” in order to be considered “true threats.”
The majority decision, written by Justice Elena Kagan, found Counterman’s stalking – which caused Whalen to leave her job and move out of Colorado for personal safety – comparable to political parody or angry commentary made by protesters at demonstrations. Despite ample evidence that Counterman was intentionally stalking Whalen, the justices decided his “inadvertently threatening speech cannot be criminalized.”
Justices Roberts, Alito, Kavanaugh, Jackson, Sotomayor, and Gorsuch concurred. In essence, the so-called liberal justices colluded with neo-conservatives to legalize stalking – supporting men’s “right” to harass over women’s right to feel safe. This is not just a question of the intent of language. During oral arguments, Chief Justice Roberts joked about Counterman’s cyber death threats to Whalen, and received laughter from other justices. (Slate, April 21)
The majority opinion puts the burden on a stalking victim to prove the perpetrator was aware of the threatening impact of their behavior. Under this ruling, in order for online speech to legally be considered a “true threat,” the court has to prove the stalker was aware their posts could be interpreted as threatening.
As noted in the Guardian: “The more deluded the stalker, the more protected the stalking.” (June 28)
In Whalen’s case, police took her report seriously, leading to Counterman’s conviction. Yet in half of all reported cases, police take no action and few arrests are made. Meanwhile, around 54% of female homicide victims had reported being stalked before they were killed.
When SCOTUS struck down Roe v. Wade in the Dobbs decision June 24, 2022, it was the white, male, and neo-conservative justices who voted with the majority opinion. In this ruling on stalking, the decision came from several justices who one might hope would be supportive of women and other victims of gender-based discrimination and violence.
Equally concerning is that in their next session, the Supreme Court will hear a case on a similar issue. A domestic abuser is appealing his conviction for violating a federal law prohibiting the possession of a firearm because he is the subject of a restraining order. Last year, SCOTUS struck down a New York law placing restrictions on obtaining a license to carry a handgun in public, claiming it violated the Second Amendment.
The Supreme Court, from its very inception, was designed to protect the interests of the capitalist class. Any decision that ran counter to this – Roe v. Wade is one example – must be credited to the broad social movement of oppressed people fighting for basic rights over 50 years ago.
Workers World says abolish the undemocratic Supreme Court, along with the rest of the racist, sexist, misogynist capitalist state.