Free Speech Protection Does Not Enable Online Abuse

Ava Caudle ’25

Opinion Editor

“I’ve had tapped phone lines before. What do you fear?” 

This DM was sent by Billy Raymond Counterman, a man who fixated on a local musician (referred to as C.W.) and continuously sent disturbing messages to her via Facebook. The Supreme Court heard his case this year, igniting worries about its significant meaning for the future of online speech. He refused to stop his rampage of attempts to get a response from C.W., even after being blocked time after time. The increasingly concerning messages implied that he was watching her and expressed a desire to harm her (from “Was that you in the white Jeep?” to “I’m currently unsupervised. I know, it freaks me out too, but the possibilities are endless.”). Counterman was reported to the authorities and arrested. He faced charges of stalking (with serious emotional distress) and harassment, but his counsel argued that the messages were protected by the First Amendment and thus could not be considered “true threats.” The Colorado Court of Appeals upheld his conviction, bringing his case to the national level.

Counterman’s issue revolves around true threats and the extent of the First Amendment’s protection towards concerning language. His messages “upended (C.W.’s) daily existence” as she self-isolated and was even driven to leave the state, but the Supreme Court decided in June that Billy Counterman’s charges were unconstitutional. The Court determined that no matter how objectively disturbing his DMs were, his speech was protected because Counterman claimed he did not personally intend to threaten her. 

On the first page of her introduction for the majority, Justice Kagan wrote, “The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” It is baffling, then, that she did not view Mr. Counterman’s actions as a conscious disregard for the law or C.W.’s safety. There is no more explicit form of communicating discomfort online than continuous blocking, which C.W. implemented and Counterman ignored by creating new accounts and repeatedly messaging her. In doing so, he demonstrated a lack of boundaries and an unhealthy attachment toward a stranger, which he perpetuated by persisting in his contact. This is a problem for a mental health treatment center to address, not the Court.

Counterman’s case is not an instance of well-intentioned speech gone awry; it is the tale of an unstable man’s feelings of entitlement to the attention of a woman in danger. His words manifested a life of their own far beyond the Facebook chat screen and impacted her to the point of distress, a fact that the Supreme Court has essentially deemed insignificant through its assertion that Counterman just didn’t “mean” what he sent to her. By dismissing C.W.’s fear instead of holding the internet harasser accountable for his increasingly concerning messages, the bench is minimizing the impact of these incidents on victims across the nation. 

With the emergence of the Counterman case, this Court had the chance to take a firm stand against the excess of dangerous speech online. An opportunity for clarity became a decision that infantilized and reduced accountability from abusers. The American foundation entails an exercise of rights—accompanied by responsibility. The First Amendment is meant to expand our knowledge and expose Americans to a diverse array of ideas contributing to public dialogue (even ideas one may not enjoy hearing). But what purpose does constitutional protection serve when applied to speech that serves no real purpose beyond terrorizing the subject, thus infringing on their safety or well-being? This right is more than an intangible concept. Its real-life ramifications for people like C.W. make it imperative that the Supreme Court draw boundaries for the sake of combatting destructive vitriol and uplifting more genuine, constructive exchange.