The shifting line between free speech and a criminal threat

Threats against public officials have become much, much more common. This includes everyone from the president of the United States to members of Congress, to state and local officials, and even civil servants like local librarians. Threats have always been a part of United States history, often manifesting in times of political turmoil or cultural tension. The internet age opened a new chapter in the U. S. making threats easier to make and harder to trace and prosecute. So what exactly is the standard for defining a criminal threat? How has it changed? And how do we balance safety and free speech in a world where the two seem increasingly at odds? On this episode of Throughline, the shifting line between protected speech and true threats. Guests: David L. Hudson, Jr., associate professor of Law at Belmont University Law School and First Amendment fellow for the Freedom Forum Mary Anne Franks, professor at The George Washington Law School, and author of Fearless Speech and The Cult of the Constitution Support shows like Throughline with NPR+. Sign up today at plus.npr.org See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

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• 0:25Rund Abdelfatah?

  August 27, 1966.

• 0:30Rund Abdelfatah?

  A group of mostly teens and men in their early 20s met in Washington DC.

• 0:35Speaker 02

  Right on the Washington Monument grounds, near the Sylvan Theater.

• 0:40Rund Abdelfatah?

  They were part of the W E B Du Bois Club, a national youth organization sponsored by the Communist Party USA. It was a left-wing group that was riding the wave of the civil rights movement, labor organizing, and anti-big government.

• 0:55Speaker 02

  They were really protesting the Vietnam War and the racially disparate use of the draft.

• 1:03Rund Abdelfatah?

  Black men were only 12% of the US population, but they made up over 30% of the ground combat battalion troops in Vietnam.

• 1:12Speaker 02

  There was a discussion group about police brutality.

• 1:16Rund Abdelfatah?

  And in that group, there was one man named Robert Watts, who made an off-the-cuff comment.

• 1:22Speaker 02

  And allegedly, Robert Watts, who was 18 years old at the time, said something to the effect, you know, "Look, if they make me go fight in Vietnam, the first person I'm going to put in my scope is LBJ. They're not going to make me go kill my black brothers."

• 1:39Rund Abdelfatah?

  LBJ, the president at the time.

• 1:41Speaker 02

  Yeah, LBJ for Lyndon Baines Johnson, the president of the United States.

• 1:47Rund Abdelfatah?

  What Robert Watts actually said was, quote, "If they ever make me carry a rifle, the first man I want to get in my sights is LBJ."

• 1:57Speaker 02

  When he made that statement, everybody just laughed.

• 2:01Rund Abdelfatah?

  But there was someone in the crowd who didn't think it was funny, an investigator with the US Army.

• 2:07Speaker 02

  You know, scope, president, LBJ, oh my gosh, that's a threat.

• 2:12Rund Abdelfatah?

  Over the past few years, threats and harassment against public officials have become much, much more common. And this includes everyone from the president of the United States.

• 2:22Speaker 00

  It's the third time in a month that shots were fired near President Trump, who was at the White House.

• 2:29Rund Abdelfatah?

  To members of Congress.

• 2:30Speaker 03

  Minneapolis man is facing federal and state charges following this week's attack on Democratic Congresswoman Ilhan Omar, who was sprayed with liquid at a town hall event.

• 2:40Rund Abdelfatah?

  To state and local officials. There have been some threats, right? Both political and personal to Indiana lawmakers. And even civil servants, like local librarians.

• 2:49Speaker 04

  This Livingston Parish librarian asked not to be identified.

• 2:52Speaker 05

  Because they will fire me in a heartbeat.

• 2:56Rund Abdelfatah?

  Threats have always been a part of US history, and they've often come in times of political turmoil or cultural tension in the country. But the internet also opened a new chapter in the US, making threats easier to make and harder to trace and prosecute. So what is a threat? How has it changed? And how do we balance safety and free speech in a world where the two seem increasingly at odds? I'm Randa Abdel Fattah. On this episode of Throughline from NPR, we're going to tell you the stories of the people who have toed the line between protected speech and true threats.

• 3:40Speaker 05

  Hi, my name is Nina Nabi Zadeh from Battleboro, Vermont, and you're listening to Throughline from NPR.

• 3:47Speaker 06

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  Nobody really knows what's gonna happen. We're gonna follow it day by day through Election Day and beyond. And you can listen to Up First every morning on the NPR app or wherever you get your podcasts. American journalist Austin Tice vanished in Syria over a decade ago. For years, we've been searching for him, and now we finally have some answers. This is the prison that Austin was in. Oh, my God. We found Austin's file. Listen to Where Is Austin Tice from NPR's Embedded and BBC Radio 4, on the NPR app or wherever you get your podcasts. Part one, Watts versus United States.

• 5:16Rund Abdelfatah?

  After that army officer overheard Robert Watts make those comments about President LBJ, he was arrested and prosecuted under a federal law from 1917 that made it illegal to threaten the president. And that was one thing that made his arrest pretty unusual because speech laws in the United States are unusually permissive. The First Amendment protects a lot.

• 5:39Speaker 02

  We're a free speech outlier in the world.

• 5:41Rund Abdelfatah?

  This is David L. Hudson, Jr.

• 5:43Speaker 02

  I'm an associate professor of law at Belmont University Law School in Nashville, Tennessee.

• 5:49Rund Abdelfatah?

  And he's a First Amendment fellow for the Freedom Forum.

• 5:52Speaker 02

  You know, in many other countries, hate speech is unprotected speech. In the United States, hate speech for adults is constitutionally protected unless it incites imminent lawless action, rises to the level of a true threat, or is considered fighting words. And that's very difficult for a lot of people to accept.

• 6:19Speaker 05

  If they ever make me carry a rifle, the first man I want to get in my sights is LBJ.

• 6:25Speaker 02

  Now, when Robert Watts said this, he was not really meaning that he was going to go assassinate President Johnson. He really was saying that this war was unjust, that there was a lot of, obviously, social discrimination, racial discrimination against African Americans.

• 6:43Speaker 02

  And that the real enemy was the government sending us overseas to fight a war that we really didn't need to have in the first place.

• 6:49Rund Abdelfatah?

  And Robert Watts wasn't the first person to have gotten in trouble for saying something about the president.

• 6:54Speaker 02

  What happened to Robert Watts is a, is a modern day iteration of what happened to Luther Baldwin back in New Jersey in the time of the Alien Sedition Acts in 1798. Luther Baldwin was a patron in a bar.

• 7:11Rund Abdelfatah?

  Who was drunk.

• 7:12Speaker 02

  President Adams is coming in a procession.

• 7:15Rund Abdelfatah?

  A ceremonial cannon salute was planned for the president.

• 7:18Speaker 02

  And Luther Baldwin allegedly, in nothing more than a drunken rant, said, "I hope if they, they fire at President Adams, they fire through his arse." And he ends up getting prosecuted for violating the Alien and Sedition Act of 1798.

• 7:35Rund Abdelfatah?

  The Alien and Sedition Acts made it a crime to publish or speak, quote, "false, scandalous, and malicious statements against the federal government." The Federalist-controlled Congress wanted to silence any political opposition in the New Republic, which was on the brink of war with France. The act expired just a few years later, in 1801. But in 1917, towards the end of World War I and another moment of national worry, a new law was passed, making it a crime to make threats against the president. This was the law that Robert Watts was arrested for half a century later, when he made those comments about LBJ. The 1960s was a big moment for the First Amendment in the Supreme Court.

• 8:20Rund Abdelfatah?

  By the time of the Watts case, several landmark cases over the previous three decades had already helped define what speech was unprotected speech by the First Amendment. Speech like defamation or using, quote, "fighting words" that are intended to provoke violence. Or speech that created a, quote, "clear and present danger." And by the 1960s, those First Amendment definitions would be tested and challenged again.

• 8:49Speaker 07

  I think there are multiple reasons why the 60s became this flashpoint for the First Amendment.

• 8:55Rund Abdelfatah?

  This is Mary Ann Franks.

• 8:56Speaker 07

  I'm a professor at the George Washington Law School, and I'm also the president and the Legislative and Tech Policy Director of the Cyber Civil Rights Initiative.

• 9:05Rund Abdelfatah?

  And she's written a couple of books about the First Amendment, which we'll share with you in our show notes.

• 9:09Speaker 07

  There's a lot of clashes happening in the 1960s, a lot of liberal versus conservative, a lot of anti-war versus pro-public order. So I think that's why you're seeing so many tensions and seeing the Supreme Court try to navigate those tensions in the best way it can.

• 9:26Rund Abdelfatah?

  As part of those tensions, the US government assigned a special unit of the military

• 9:30Speaker 07

  called the Army Counterintelligence Corps,

• 9:33Rund Abdelfatah?

  whose job was to monitor protests.

• 9:35Speaker 07

  There was concern that there was espionage, and there was concerns about communism. But it had also, by the 1960s, had also become very much a question of, you know, who was someone who was just protesting the kind of efforts that the federal government says we have to be involved in.

• 9:52Rund Abdelfatah?

  So that's how an Army officer overheard Robert Watts.

• 9:55Speaker 07

  You've got an investigator from that unit who was monitoring these anti-war protests that are happening on the Washington Monument. And that's how all this kicks off.

• 10:07Rund Abdelfatah?

  After Watts was convicted of threatening the president, he challenged the ruling in the US Court of Appeals. That court upheld his conviction by a 2 to 1 vote. But that one dissenting vote by Justice James "Skele" Wright would be important. What was the nature of his dissent? What did he say that was his reasoning?

• 10:30Speaker 02

  Essentially, what Judge Wright is saying is that we've got to allow breathing space for critical speech.

• 10:36Speaker 05

  Many statements on political affairs made by implication or through hyperbole encompass the violent end of the chief executive. The threat of punishment for all such statements would exert a chilling effect on political speech too drastic to be consistent with the guarantee of free expression.

• 10:55Speaker 02

  You've got the civil rights movement, and you've got the Vietnam conflict. There's reason to have dissenting voices. There's reason to have different points of view, right?

• 11:04Rund Abdelfatah?

  And that's what was on the court's mind when it took up the Watts case the following year.

• 11:10Speaker 02

  The issue they're looking at essentially is whether Watts engaged in an unprotected true threat, or whether he engaged in a form of protected speech.

• 11:21Rund Abdelfatah?

  But something kind of surprising happens. At least, it's surprising to us today. The court decides not to hear any oral arguments in the case.

• 11:31Speaker 07

  It usually means, from the court, that it's a sign that they thought this was an incredibly easy case. They just really thought this is really straightforward.

• 11:38Rund Abdelfatah?

  And that's because, just a few years before Watts, the Supreme Court had decided another big free speech case, The New York Times versus Sullivan, which protected the media by making it hard for public officials to sue for defamation. In its opinion, the court said, "Debate on public issues should be uninhibited, robust, and wide open, and it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

• 12:10Speaker 07

  So they're really saying that was the standard that we have committed ourselves to, that especially public officials are going to have to tolerate, to some extent, even really aggressive and vicious sounding kinds of statements, because that's what it means to serve in public office, and that's what it means to be committed to robust debate.

• 12:31Rund Abdelfatah?

  So when they looked at the Watts case and the justice right opinion, which laid out the context in which Robert Watts made his comments, it was pretty open and shut. The Supreme Court, on April 21, 1969, issued its ruling.

• 12:45Speaker 07

  The first threshold question is, what does it mean to make a threat? And that's when they say, "We only would be focused here on true threats."

• 12:55Rund Abdelfatah?

  True threats.

• 12:57Speaker 07

  And it's at that point, they say, "What we mean by a true threat, or what we assume is a true threat, is one that has to be more than just sort of loose talk or political hyperbole."

• 13:07Speaker 02

  The court focused on what we have now come to refer to as the so-called Watts factors. One was the context in which the statements were made.

• 13:16Rund Abdelfatah?

  A group of activists in a political discussion group. Then there was number two.

• 13:22Speaker 02

  That the threat was not unequivocal. It was very conditional, right? If they draft me and make and send me to Vietnam, right? The first person I'm going to put in my scope is LBJ. And then the third thing was the reaction of the listeners, the reaction of the audience. They laughed. They knew it wasn't a serious attempt to assassinate the president. It was a jest.

• 13:45Rund Abdelfatah?

  The US Supreme Court ruled in favor of Robert Watts.

• 13:50Speaker 02

  Justice William O. Douglas in the Watts decision writes a separate concurring opinion. And towards the end of his opinion, he essentially says, I thought the days of the Alien and Sedition Act were over. That was one of the sordid, sorriest chapters in our history. And yet, here we are again prosecuting somebody for a comment that was really just made in jest. It wasn't a true threat. You know, Luther Baldwin didn't mean for a cannon to fire at John Adams, and Robert Watts didn't mean that he was going to assassinate President Johnson.

• 14:24Rund Abdelfatah?

  Watts' conviction was overturned, and he was acquitted. What precedent does the Watts case set?

• 14:33Speaker 02

  What the Watts case established is it actually uses the term "true threats." And it says, "True threats are an unprotected category of speech."

• 14:44Rund Abdelfatah?

  So, true threats would enter the legal lexicon, like certain obscenities, or libel, or fighting words.

• 14:52Speaker 02

  And so Watts is profoundly important because it signifies that true threats are an unprotected category of speech. Watts is also important because it said that not all speech that's critical of the president is a true threat, not all speech that criticizes public officials.

• 15:12Rund Abdelfatah?

  Coming up, what happens when speech is about people who aren't elected?

• 15:22Speaker 02

  What the US Supreme Court recognized is not all cross-burnings are the same.

• 15:27Rund Abdelfatah?

  How white supremacists help define "true threats." This is Abdul from home Syria.

• 15:40Speaker 07

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• 17:07Rund Abdelfatah?

  Part two, Virginia versus Black.

• 17:11Rund Abdelfatah?

  In 1969, the Supreme Court decision Watts versus United States defined a certain category of protected speech, the kind of spouting off about a public official that might be impolite but was not considered to be a so-called true threat.

• 17:27Speaker 02

  What we had, honestly, was a period of confusion in the lower courts because the Supreme Court did not define exactly what a true threat was.

• 17:38Rund Abdelfatah?

  That would happen about 30 years later, in the early 2000s, when the Supreme Court took on another true threat case. Actually, two separate cases that were merged together. Both of them revolved around crossburnings.

• 17:55Speaker 02

  In one case, you had a guy by the name of Barry Elton Black.

• 17:59Speaker 05

  What we had in the case of Barry Black was he heard that...

• 18:06Speaker 06

  From Pennsylvania, he heard that down in Carroll County, blacks and whites were holding hands on the sidewalk.

• 18:13Speaker 02

  He was a local Klan leader.

• 18:15Rund Abdelfatah?

  This is 1998 in Virginia, not during Jim Crow.

• 18:20Speaker 06

  And so they came down, he came down, and they had this event. They chose a spot near an open stretch of highway where they erected a 30-foot cross, such as has these columns.

• 18:33Speaker 02

  And he burned a cross with the permission of the property owner on a piece of land that was right near a state highway.

• 18:43Speaker 06

  And they burned it at night with a loudspeaker and talk about taking a 30-30 and randomly.

• 18:50Speaker 02

  Now, was that nice?

• 18:51Rund Abdelfatah?

  It's hard to hear because Justice Anthony Kennedy speaks over Virginia State Solicitor General William Hurd. But he says the men were talking about randomly shooting black people. And a woman related to the property owner witnessed this and was terrified.

• 19:07Speaker 02

  There were about 25 to 30 people there, and she was horrified to see these people in Klan hoods.

• 19:13Rund Abdelfatah?

  Barry Black was arrested for violating a Virginia state law that outlawed burning a cross in order to intimidate a person or group. And the law specified that any cross burning was inherently evidence of intent to intimidate. Black was convicted and fined $2,500.

• 19:30Speaker 02

  That was one case.

• 19:33Speaker 02

  The other case involved two individuals, Mr. Omara and Mr. Elliott. In May 1998, Richard Elliott and Jonathan Omara attempted to burn a cross on the lawn of Elliott's neighbor. By the name of James Jubilee.

• 19:51Rund Abdelfatah?

  James Jubilee was a black man who had moved next door to Richard Elliott.

• 19:55Speaker 02

  And Mr. Elliott was firing his gun in his backyard. Jubilee had complained to Mr. Elliott's mother. And she responds, well, look, he likes to shoot guns, so he just shoots them in the backyard.

• 20:08Rund Abdelfatah?

  Elliott's mom said he shot firearms as a hobby. The backyard was a shooting range. On May 2, 1998, Elliott and Omara drove a truck onto Jubilee's property. They planted a cross and set it on fire. They were arrested under the same Virginia law as Barry Elton Black. So these two cases were consolidated in front of the Supreme Court. And the question that they were trying to answer was, what exactly?

• 20:40Speaker 02

  Whether this statute itself, which criminalizes burning of a cross with an intent to intimidate others, does it violate the First Amendment?

• 20:50Rund Abdelfatah?

  And at the core of that question, and what was debated in the court, was what does the action of burning a cross mean?

• 20:58Speaker 02

  What's interesting is that the court's conducting oral argument in this case, and they're going about their business. And all of a sudden, a profoundly unusual thing happened. Justice Clarence Thomas asked a question.

• 21:12Speaker 05

  Mr. Dreeben, aren't you understating the effects of the burning cross?

• 21:19Rund Abdelfatah?

  Why is that profoundly unusual?

• 21:21Speaker 02

  I don't think he had spoken in six to eight years.

• 21:23Rund Abdelfatah?

  Wow.

• 21:24Speaker 02

  At a Supreme Court argument.

• 21:26Rund Abdelfatah?

  Justice Thomas, who at the time was the sole black justice on the court, agreed with the state of Virginia. He's like, nobody burns a cross just for the heck of it.

• 21:35Speaker 05

  It's my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and the Ku Klux Klan.

• 21:47Speaker 02

  And all of a sudden, he talks about the Klan and the burning cross being a tool, a tool used in lynching.

• 21:56Speaker 05

  And this was a reign of terror, and the cross was a symbol of that reign of terror. Was it, isn't that significantly greater than intimidation or a threat?

• 22:08Speaker 07

  Even if we, you know, can't necessarily go back and say, did that speaker, at that moment, when they're burning the cross, was that their intention? To some extent, it doesn't matter, because that is the impact certainly on someone who is black, what we always know as someone who's targeted by that kind of activity, that that is meant to intimidate you and put you in fear, that the next step is going to be physical violence. Whether or not that physical violence ever transpires is somewhat beside the point. The point is that that is a sign that is going to cause that kind of fear.

• 22:38Speaker 05

  And my fear is, Mr. Dreeben, that you're actually... understating the symbolism of an effect of the cross.

• 22:48Speaker 02

  It was really a profoundly significant moment that Clarence Thomas spoke.

• 22:52Rund Abdelfatah?

  But it wasn't the only factor they considered. The Supreme Court announced its ruling the following spring, on April 7, 2003.

• 23:03Speaker 04

  The Supreme Court today upheld state laws that make cross burning a crime, but only in limited circumstances where the purpose of the burning is intimidation.

• 23:13Speaker 02

  And ultimately, what the US Supreme Court recognized is not all cross burnings are the same.

• 23:19Rund Abdelfatah?

  Not all cross burnings are the same.

• 23:22Speaker 06

  The act of burning a cross may mean that the person is engaging in constitutionally proscribable intimidation, or it may mean only that the person is engaged in core political speech.

• 23:36Rund Abdelfatah?

  So even though cross burnings have been used to intimidate Black and Jewish people, they've also been used as a part of KKK rituals celebrating their Klan identity. The court said those two scenarios are different.

• 23:50Speaker 02

  Sometimes people burn crosses as a real intent to intimidate, as a tool of terror, like what Elliott and Omarah did to the Jubilee family. Like, you get a cross burned in your backyard, right? You realize what message that sends. People want you dead. People want you to move out of the neighborhood, disappear, or we're going to kill you.

• 24:11Rund Abdelfatah?

  Well, because historically, it would mean they're going to come and potentially lynch you.

• 24:17Speaker 02

  Exactly. And that's very different, though, than what Barry Elton Black did. Barry Elton Black burned a cross as part of a Klan meeting as sort of this shared group ideology.

• 24:29Rund Abdelfatah?

  In its ruling, the Supreme Court said that in order to be a true threat, quote, "The speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," unquote.

• 24:46Speaker 02

  And so that was profoundly significant because the Supreme Court, in the course of its decision, gave us at least something close to a definition of a true threat, which the Watts decision did not do.

• 25:02Rund Abdelfatah?

  But still, Justice Clarence Thomas dissented. He believed the very action of burning a cross was inherently meant to intimidate. And that question of what an action was meant to convey would come back to the court decades later. Coming up, how far will the court stretch true threats in the name of defending democracy?

• 25:29Speaker 05

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• 26:35Speaker 00

  This week on Short Wave, truth and fraud. That is the beating heart of the movie You Can See Everything. But can you spot a liar in action?

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• 27:02Rund Abdelfatah?

  Counterman versus Colorado. The cases that followed the Supreme Court's 2003 ruling on crossburnings, that their true threats in some cases protected political speech in others, revealed a deep divide in the lower courts over whose perspective should get priority when a threat is made. Does the speaker have to know why they're making a threat? Actually mean to be threatening when they spoke? Or could a reasonable person just say, no, a threat is a threat, and that's enough? A lot of this confusion in the 2000s paralleled the rise of social media and increasing political and social tension in the country. Lots of threats fell into a gray area.

• 27:45Rund Abdelfatah?

  Law professor David Hudson Jr. experienced that firsthand.

• 27:49Speaker 02

  My wife's African American, and for a time, we were living in Smyrna, Tennessee. And we're walking down the side of the road, and four men drive up in a pickup truck with three Confederate flags, almost run us off the road. They were chanting, "White power, white power, white power."

• 28:09Rund Abdelfatah?

  Wow.

• 28:10Speaker 02

  Now, this was at the time that Obama had been elected. And there was something about Obama getting elected that caused this violent, virulent racism to just spew up.

• 28:25Rund Abdelfatah?

  Online threats to the president became a major concern after Barack Obama was elected in 2008, which not only made it more difficult for the Secret Service, but has also made it challenging for the Supreme Court. Because the kinds of threats people could make, and how easily they could make them, was changing fast.

• 28:44Speaker 07

  If we're worried about the harm that the speech might cause, we maybe do need to think more carefully about how the internet has made it so that there is a kind of mix of speech and conduct almost always, right? You're not just speaking spontaneously when you're online. For better, for worse, you are making some kind of conscious step to type something out and indicate it to someone. You're not just speaking to 70 people. You could be speaking to 7 million people, all at different times, who might be taking it all in different ways. We've never really seen the Supreme Court grapple with that and suggest that maybe that means that some of the standards have to be changed.

• 29:19Rund Abdelfatah?

  Because when the laws don't change, people take advantage.

• 29:23Speaker 07

  There are many, many abusers who literally get together and talk about the boundaries of the First Amendment and how they can get away with things.

• 29:31Rund Abdelfatah?

  And the context around speech online would play a role in another pivotal moment for defining true threats. The story here begins in 2014.

• 29:44Speaker 02

  Billy Raymond Counterman is a man from Colorado, and he becomes obsessed with this local musician, Cole Whalen.

• 29:52Speaker 07

  It's 2010, and I am touring nonstop after my first release on Iconic Records.

• 29:57Rund Abdelfatah?

  This is Whalen, who has shared her story publicly on social media.

• 30:01Speaker 07

  At the time when this was happening, Cole Whalen, as she describes it, was sort of up and coming on the Colorado scene. She was making her name as a musician, so she was trying to cultivate her fan base. My career that I had worked so hard for, it felt like it was just about to tip over the edge. What I didn't know then was there was a man who was already fixated on me.

• 30:22Speaker 02

  And he sends her hundreds, literally hundreds, of Facebook messages. He's like this obsessed fan, and she doesn't want anything to do with him. She rebuffs the efforts. She realizes that he's off, and she'll block him, and then he'll come back with another account, and he'll send her more messages.

• 30:43Speaker 07

  She realized that this person was saying really disturbing things that seemed to indicate that they knew each other, or that he wanted to know her, or that he was watching her.

• 30:50Speaker 02

  A lot of them are very, I would think, that were threatening if I was CW, right?

• 30:56Speaker 07

  I'm developing this heightened fearful sense of my surroundings. And it got to the point where she was so scared that he was going to show up at one of her events, or might be at her events, that she no longer could enjoy the performances. Her bandmates have talked about how she would just seem terrified. She'd be scanning the crowd, looking for someone suspicious. Always looking over my shoulder, always scanning the parking. Before I walk through it, where is the nearest exit? And she was trying to kind of put it out of her head and just not think about it until a family member did a little research on Counterman and discovered that he had been convicted for making threats against female family members of some years prior, and these were really, really violent threats.

• 31:41Speaker 07

  And then she got very scared and decided to report it to the police.

• 31:48Rund Abdelfatah?

  After she reported this to the police, Billy Counterman was arrested and convicted under a Colorado stalking law that made it a crime to repeatedly communicate with someone in a way that would make a reasonable person suffer serious emotional distress.

• 32:03Speaker 07

  And he then challenges that on First Amendment grounds, saying the only way that the state is allowed to convict him for stalking is if he intended for his recipient to feel that terror, as opposed to it being the kind of thing a reasonable person would experience as terrifying.

• 32:20Rund Abdelfatah?

  Billy Counterman, who was diagnosed with a mental illness, was arguing that he was innocent because he didn't intend for Cole's Waylon to feel terrorized.

• 32:30Speaker 02

  The court uses the Counterman case as the vehicle to answer that unanswered question.

• 32:36Rund Abdelfatah?

  Did the speaker have to know that what they said was threatening? Or do we take the word of what a, quote, "reasonable person" would feel?

• 32:44Speaker 04

  Our precedent demands that the state make a showing about what the defendant had in his mind.

• 32:51Rund Abdelfatah?

  The Supreme Court, in its seven to two decision read by Justice Elena Kagan, ruled in favor of Billy Counterman. His conviction was overturned.

• 33:01Speaker 04

  And we do that again here to ensure that the prosecution of unprotected speech doesn't work to chill valuable protected expression.

• 33:11Speaker 02

  And essentially, what the US Supreme Court said is prosecutors have to show you acted in conscious disregard as to whether your statements would be considered threatening.

• 33:23Speaker 07

  It's not that you had to actually intend for something to be terrifying, but you had to have known that there was a substantial risk that the person would think of it as terrifying, and you did it anyway.

• 33:33Speaker 02

  And I think that's a significant development. Justice Kagan wrote that opinion. She's like, if we allow people to be prosecuted without showing any sort of subjective intent or awareness on the part of the defendant. Then there is the possibility that people might be prosecuted for

• 33:55Speaker 02

  sort of hyperbolic political type statements that somebody else might view as a threat that the speaker really didn't intend as a true threat.

• 34:05Rund Abdelfatah?

  Okay, so you might be thinking, this wasn't a case about political speech. It was a case about stalking. Aren't those different? The court said, basically, that's not the point here. We have to think about how ruling against Counterman, telling him he wasn't allowed to say what he said, could potentially affect all kinds of speech. Which means that, yes, in the name of protecting speech that allows us to be critical of the government or politicians, the court's ruling also has effects on private citizens, including people experiencing domestic abuse or stalkers.

• 34:39Speaker 07

  You're giving the private stalker even more room to stalk than you would even give someone who would have been able to criticize a political figure.

• 34:50Rund Abdelfatah?

  In the first true threats case in 1966, the court ruled that Robert Watts was allowed to make a hyperbolic statement about shooting President LBJ in a context where it was clear he was making a political point about the Vietnam War, not an actual true threat against the president's life. Fifty plus years later, when Billy Counterman sent hundreds of messages to a musician, the court also said that was not a true threat because the government had not proven that Counterman had at least some understanding that this speech was threatening. And the court vacated Counterman's conviction in order to preserve the rights of the Watts's of the world.

• 35:32Rund Abdelfatah?

  I know that we've spent a lot of time talking about the legalese and I know you've said for years you're focused on the legalese. But when we think about the context surrounding that Watts case, it was so important, right? Like, the fact that this was peak civil rights era, you have political assassinations happening in the country. You have these very big kind of existential questions facing the country. That moment feels super similar, in a lot of ways, to the moment we're in now. And so, thinking about the context today.

• 36:05Rund Abdelfatah?

  Does that change or influence how you're thinking about these various cases and this question of true threats fundamentally?

• 36:13Speaker 02

  Well, I worry just in this era of incredible political divide and a great political polarization and just vitriolic rhetoric that you see on social media, I think there are just simply going to be more true threat prosecutions.

• 36:32Rund Abdelfatah?

  Do you think there might be some Watts's in the mix of that?

• 36:34Speaker 02

  I do. I think there'll be a few Watts's in the mix of it. I think that unfortunately imprecision occurs and when you have overzealous prosecutors, sometimes they'll target people who really did not intend their statements to be threatening.

• 36:55Rund Abdelfatah?

  And I guess that's the, you know, a through line of this whole story is that figuring out that boundary, right, between the real threats, the true, true threats and the hyperbolic or perceived true threats is, it's impossible, it seems, to get it completely right?

• 37:20Speaker 02

  Exactly. It's an enduring question. It's a very difficult question. And I think it just shows you why this is so relevant in Jermaine today. I think sometimes the speech is a window into troubled souls and that people who engage in incendiary speech are giving off clear signals that they're a danger, right, and that they could react with, with, with violence. And then other times you have the sort of safety valve theory of free speech that allowing somebody to vent, blow off steam, actually may prevent violence. So it's sometimes one way and sometimes the other, and that's what makes this even more difficult.

• 38:06Speaker 07

  In this country, we are very permissive about hate speech. Do we honestly think that the United States in 2026 is a more peaceful country, where people really get along with each other because they're allowed to say anything that they want?

• 38:18Rund Abdelfatah?

  Mary Anne Franks says we have to remember that threats can go both ways, from citizens to public officials, but also the other way around. And the power dynamics have always mattered.

• 38:31Speaker 07

  So much of these cases focus on what it is that individuals are allowed to say to public figures, or what private individuals say to each other. What we're oftentimes not thinking about is how much the government or public officials themselves are able to cause fear and intimidation in their citizens, right? So it is interesting to think about, if we think that free speech is so important because we want there to be freedom for the public, for the people to be able to criticize public officials and to speak freely and criticize the government, are we doing anything really to hold back the force of the government from repressing dissenting voices and from engaging in outright violence against those that they think disagree with their perspectives?

• 39:21Speaker 07

  If we really look at our history, it is not the kind of story that we normally tell ourselves.

• 39:31Rund Abdelfatah?

  That's it for this week's show. I'm Randa Abdel Fattah. Throughline was created by me and Ramtin Arablouei. This episode was produced by me and...

• 39:41Speaker 00

  Sarah Wyman.

• 39:42Speaker 05

  Casey Minor.

• 39:43Speaker 04

  Christina Kim.

• 39:44Speaker 00

  Devon Katayama. Kiana Mulholland.

• 39:46Speaker 05

  Irene Noguchi. Leanna Simstrom.

• 39:49Speaker 00

  Julia Redpath. Skylar Swenson.

• 39:52Rund Abdelfatah?

  Fact checking for this episode was done by Kevin Vogel. Thanks also to Johannes Dergi, Cheyenne Butler, Beth Donovan, Yolanda Sangwenny, and Tommy Evans. This episode was mixed by Robert Rodriguez. Music for this episode was composed by Ramtin and his band, Drop Electric, which includes... Naveed Marvi.

• 40:10Speaker 03

  Sho Fujiwara. Anya.

• 40:13Rund Abdelfatah?

  Mizzani. And finally, if you have an idea or liked something you heard on the show, please write us at [email protected]. And if you're open to us giving you a call back, leave your number, too. We might feature your idea in an upcoming episode. Also, make sure to follow us on Apple, Spotify, or the NPR app. That way, you'll never miss an episode. Thanks for listening.

• 40:39Speaker 03

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• 40:44Speaker 07

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• 41:14Speaker 05

  In the much-talked-about new movie, Wicker, Olivia Colman plays a woman who commissions a husband literally made of wicker. Yes, wicker. We'll tell you why the silly and bawdy new movie is also a nice cozy fall watch. Listen to Pop Culture Happy Hour via the NPR app or wherever you get your podcasts.