The Supreme Court finishes this week’s hearings tomorrow with a Colorado case testing the meaning of the word “threat.” The case will require the Court to probe again a question that has lingered in the law for well over a century: how would a “reasonable person” behave?
The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
Wednesday’s hearing: Counterman v. Colorado The hearing begins at 10 a.m.; it is scheduled for one hour.
Background: Across the entire landscape of Anglo-American law, there is no more familiar figure regularly appearing in court than the “reasonable person.” Such a person does not actually exist, but judges are confident that they – or jurors, properly instructed – can figure out what kind of behavior is “reasonable.” It is a concept applied in both civil and criminal cases.
Some historians trace the concept back to an 1837 English court decision (Vaughan v. Menlove). A man was sued by a neighbor whose cottage burned down because of a fire in a haystack on the man’s property. The judge told the jury that the test of the man’s liability for the damage (negligence in maintaining the haystack) was whether he had “proceeded with such reasonable caution as a prudent man would have exercised under such circumstances.” The jury ruled against the haystack owner.
One of the earliest adoptions of the idea in the United States came in a Massachusetts state court ruling in 1850 (Brown v. Kendall). Using wording similar to that of the English judge, the court ruled that “reasonable care” means “the care that a prudent and cautious man would take to guard against probable danger.” That case arose when two men were trying to stop dogs from fighting. One man, wielding a stick, raised it over his head, hitting the other man standing close by, injuring his eye. The jury ruled for the man with the stick, but the state Supreme Court ordered a new trial on the standard it spelled out.
The “reasonable person” makes a modern appearance on Wednesday as the Supreme Court hears the appeal of a Colorado man convicted of stalking and threatening a woman on her Facebook account. Did the man’s actions amount to a threat, not protected as free speech?
In a Supreme Court decision in 1969 in Watts v. U.S., involving the prosecution of a man who, at a political rally, verbally threatened to kill President Lyndon Johnson, the Court narrowed the scope of a 1917 law against making “any threat to take the life of or to inflict bodily harm upon” a President.
While the wording of that law does not violate the First Amendment guarantee of free speech, the Court said, the law can validly apply only in cases in which prosecutors “prove a true ‘threat.’ “ In this instance, the ruling concluded, the comment was only “a very crude offensive method of stating a political opposition to the President.” It did not spell out what a “true threat” would be.
The Court returned to the issue in a 1992 decision, R.A.V. v. City of St. Paul, involving prosecution of a teenager for burning a cross on the lawn of a black family. Cross-burning, of course, was a frequent mode of intimidation of blacks by the Ku Klux Klan and remains an ugly symbol of bigotry.
While the 1992 ruling struck down as too broad a city ordinance that outlawed pubic displays of symbols of racial hatred, the Court repeated the concept that “threats of violence” are not protected by the First Amendment. The reason for that, it said, is to allow the government to protect “individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.”
In another cross-burning case, Virginia v. Black (2003), the Court went the furthest so far to define “true threats” unprotected by the Constitution. It said: “ ‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of violence to a particular group or group of individuals….The speaker need not actually intend to carry out the threat.”
That distinction seems to be between “expressing an intent” and actually “intending” to act.
Even that explanation, however, has not ended the debate about the concept. In recent years, lower courts have split in defining what proof is required to convict an individual for making a “true threat.” The Supreme Court has now agreed to resolve that dispute by accepting this Colorado case. The case involves a state anti-stalking law that specifically uses the perception of a “reasonable person” in judging guilt or innocence.
The Biden Administration’s Justice Department has entered the case to defend the prosecution of cases involving threats, noting its interest in the laws protecting the President and other public officials.
Facts of this case: A Denver man, Billy Raymond Countryman, was accused of using Facebook messages over a two-year period to try to make contact with a woman – a singer and songwriter in Colorado. The woman accepted an initial request by him to become a Facebook “friend,” but after that never responded to any further entries.
The Supreme Court filings identify the woman only by her initials, “C.W.,” but she has taken her story to the media and has permitted the use of her name, Coles Whalen.
Countryman’s messages between 2014 and 2016 cited facts about her that she interpreted as indicating that he had followed her or had kept her movements under watch. She told friends she found the tone and content of the messages to be threatening.
The Justice Department told the Supreme Court that Countryman has been threatening violence to others over more than two decades. He was convicted twice – in 2003 and 2013 – of violating federal laws against communicating threats. In the case involved in his current appeal to the Court, he was found guilty of violating the state anti-stalking law and was sentenced to four and a half years in prison.
The legal issue before the Supreme Court is not how Ms. Whalen personally interpreted Countryman’s messages but how a “reasonable person” would.
The Colorado law makes it a crime to engage in stalking by repeatedly following, approaching, contacting, placing under surveillance, or making communications with another person “in a manner that would cause a reasonable person to suffer serious emotional distress” and that actually causes such distress.
Countryman appealed to the Supreme Court, arguing that it violates the First Amendment guarantee of free speech unless prosecutors prove that the accused person “subjectively knew or intended the threatening nature of the statement.” It is not enough, his lawyers contended, to show what a fictitious “reasonable person” would regard as a threat of violence.
The question before the Court: When does a threat conveyed to another person become a crime that is not constitutionally protected as free speech?
Significance: The Supreme Court and lower courts have had difficulty for decades sorting out when a person communicates an illegal threat of violence.
Part of that difficulty arises out of the underlying tension between, on the one hand, the usual requirement that a person can be convicted of a crime only if they intended to do so – a subjective question – and, on the other hand, finding indications of intent in the objective view of a “reasonable person” who, obviously, cannot be summoned to the witness stand to be cross-examined.
The “reasonable person” standard has been of genuine value in helping juries – in civil cases – decide when someone’s actions meet the less demanding standard of “negligence” in causing harm to someone else.
This case is a fundamental test of whether that approach provides an easy short-cut as prosecutors seek to prove criminal charges about making threats, when the standard of proof is at its highest — “beyond a reasonable doubt.”
The Justice Department told the Court that there has been an increase in recent years in violent threats toward officials at all levels of government as well as in the private sector. Adding significantly to the problem, the Department said, is the availability of the Internet – a medium of mass communication open for use by anyone with a computer.
The Court will return to the bench next Monday for more hearings. It will review the case of a Maryland prison official seeking to challenge a civil rights verdict against him and prison guards for a violent attack on a jailed individual. In a second hearing, the Court will explore whether Indian tribes have legal immunity to bankruptcy claims by individuals who owe money to the tribe.