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Abstract

Many scholars expected the Supreme Court’s Counterman decision to significantly reshape true threat law, undermining public safety while expanding protections for caustic political speech. Counterman required that a speaker consciously disregard a substantial risk that their communications would be viewed as threatening violence to give rise to liability. This created a concern that it would be difficult to convict harassers and stalkers who were, or claimed to be, delusional, and thus unaware of their speech’s likely impact. Scholars also feared the invalidation of some stalking and harassment statutes and increased difficulty in obtaining protective orders, which play a major role in preventing intimate partner and workplace violence.

This first empirical study on Counterman’s effects finds that, while these concerns have largely not materialized, considerable uncertainty remains. In federal courts, Counterman has had a minimal impact on jury instructions, has not resulted in any convictions being overturned, and has even been cited to justify admitting probative but damaging evidence of defendant intent. In sum, it has not benefited federal defendants. At the state level, by contrast, some courts have vacated convictions due to constitutionally deficient jury instructions, and a minority of states have applied Counterman’s recklessness standard to civil cases, potentially signaling a shift in how those jurisdictions will address protective orders. No state stalking or harassment statutes have been invalidated, however, and the majority rule is to not apply Counterman to protective orders.

But this status quo rests precariously on state courts deciding to minimize the sweep of Counterman. Many courts assume that Counterman does not apply to civil cases and that a large class of stalking and harassment laws exist independently of true threats doctrine. These conclusions are debatable and jurisdictional splits on them are already emerging. If the Supreme Court revisits these issues, the fears of Counterman’s critics may yet be realized.

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