This Court Decision Could Impact What Jokes You Can Tell

The Supreme Court will be holding oral arguments in a case that could have broad free speech implications for everything from religious expression to online jokes, according to the Daily Caller.

Counterman v. Colorado deals with whether a speaker’s intent should be considered when he is accused of making a “true threat.” A “true threat” is speech that is not protected by the First Amendment.

The case involves Billy Raymond Counterman, who received a four-and-a-half-year sentence for sending repeated Facebook messages to a local musician who found them threatening, including telling her to “Die” and asking, “Was that you in the white Jeep?”

The Colorado Court of Appeals upheld his conviction ruling that a “reasonable person” would find the statements threatening.

However, Counterman argued that it wasn’t his intent to threaten the musician.

Counterman appealed to the Supreme Court, asking the justices to consider the speaker’s intent rather than the emotional reaction of the recipient when determining crimes against “pure speech.”

Attorney Gabe Walters from Foundation for Individual Rights and Expression, who filed a brief in the case, told the Daily Caller that based on Supreme Court precedent and the principles of free speech, to be punished for speech, the speaker must “actually intend to cause a person or group of people fear of harm.” Otherwise, any speech that might be socially or politically unpopular, or even speech that is intended to be a joke, could be “too easily” punished.

Travis Barham, senior counsel with Alliance Defending Freedom, which also filed a brief in the case, warned that the case could “open the door to restricting speech based on its effect on the recipient.”

Barham described attempts to prosecute speech as a “slippery slope,” and argued that courts must make it clear that the government can’t criminalize speech without “considering the speaker’s intent.”

However, three law professors who filed a brief with the Court argue that the Counterman case isn’t about threats but stalking.

According to the professors, stalking laws “prohibit a pattern of conduct” which can sometimes include speech. But the restrictions on speech are not based on the content.

The professors argue that the Supreme Court should uphold Counterman’s conviction, but not on the same basis used by the appeals court. Instead, the Supreme Court should uphold the conviction under Colorado’s stalking law.