US Supreme Court backs man who sent female musician flood of unwanted messages

Counterman had a history of making violent threats to women and was on supervised release from one such federal conviction during the two years he continuously messaged Whalen. He was found guilty in a 2017 trial of stalking Whalen and sentenced to 4-1/2 years in prison as he pursued his First Amendment appeal.

John Elwood, an attorney for Counterman, hailed the court’s recognition that “the First Amendment requires proof of mental state before it can imprison a person for statements that are perceived as threatening.” Counterman contended that prosecutors should be required to prove a speaker’s specific intent to threaten before stripping offending speech of its constitutionally protected status.The ruling did not go that far, saying prosecutors need only show that a speaker acted recklessly, meaning the person is “aware that others could regard his statements as threatening violence and delivers them anyway.”

George Washington University Law School professor Mary Anne Franks, who filed a brief in the case on behalf of First Amendment scholars, lamented Tuesday’s decision.

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