Speech Versus Action

A recent report on an upcoming Supreme Court case from the New Republic made me think–definitely not for the first time–about the widespread misconceptions around the First Amendment.

Most of the people who read this blog are aware of many of those misconceptions. Probably the most annoying is the most basic–it constantly amazes me (okay, irritates the heck out of me) how many Americans don’t know that the First Amendment, like the rest of the  Bill of Rights, protects only against government action.

I still remember a call I got when I was with Indiana’s ACLU; the caller had applied for a position with White Castle, and had been told that his extensive tattoos were incompatible with their customer service standards. He demanded we sue White Castle for infringing his Free Speech rights. I had to explain that–had the City Council passed an ordinance against tattoos, that would have violated his First Amendment rights, but White Castle is private–and has its own First Amendment right to determine the manner of its own communication.

The case described in the linked article isn’t that clear-cut. It  involves an often-contested “gray area.”

The Supreme Court will hear Counterman v. Colorado in April to decide whether prosecutors must prove that a defendant meant to threaten someone with harm, or if they can opt for the lower threshold of whether a reasonable person might interpret a defendant’s actions or statements as a threat. Where the high court ultimately comes down on this distinction could be consequential in an age when it’s easier than ever for Americans to threaten not just each other, but also election workers, FBI agents, members of Congress, and even Supreme Court justices. How far does the First Amendment go to protect them?

In my classes, I took a rather unorthodox approach to this question, and a number of similar issues. While you won’t find my distinction in legal treatises, it seemed to help students understand the purpose–and limits– of the Free Speech clause. The fundamental distinction I drew was between speech (defined as communication of a message) and action.

The distinction doesn’t rely on whether there was verbal communication.

If I tell you that this cubic zirconium ring I’m selling is really a diamond, and charge you accordingly, I have engaged in fraud–a behavior. The First Amendment won’t protect me.

If I text and telephone you every hour and call you names, that’s harassment–a behavior. The First Amendment won’t protect me.

If I burn an American flag, I am sending a message (we know it’s a message, because  most Americans understand it and find it offensive). That message is protected by the First Amendment.

The problem for law enforcement arises when it is unclear whether we’re dealing with behavior–a genuine threat–or the expression of an opinion. (As lawyers like to say, it’s a “fact-sensitive” inquiry.) Social media trolling has vastly complicated this determination.

At the heart of this case is a campaign of harassment that seems all too familiar. The plaintiff, Billy Counterman, used multiple Facebook accounts to send hostile messages to an unidentified local musician in Colorado. Among the numerous messages that Counterman sent her were ones that read, especially in the context of the years-long barrage, as threats. “Fuck off permanently,” Counterman said in one of the messages. “You’re not being good for human relations,” read another. “Die. Don’t need you.” The target, who never responded to him and blocked him multiple times, ultimately contacted Colorado police, who charged Counterman for violating the state’s anti-stalking statutes.

Colorado law defines the offense to describe anyone who “repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.” Notably, under the rulings of Colorado courts, prosecutors aren’t required to prove that the defendant intended to threaten a person. They instead must only show that a reasonable person would have taken the statements as threats, which is a much easier threshold to clear at trial.

In the lower courts, the troll was handed a sentence of four years under the state’s anti-stalking statute.

This is one of those “hard cases” that –as the saying goes– sometimes make bad law. Four years seems pretty excessive for being an online asshole; on the other hand, such trolling far too frequently becomes a “heckler’s veto”-defined as behavior that allows  people who disagrees with a speaker’s message to shut that message down.

It remains to be seen how the Court will treat online harassment, but it sure seems like it falls on the “behavior” side of my explanatory line…..


  1. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    The post this morning from Shiela motivated a fresh read of the text of The First Amendment. I am reminded how carefully and thoughtfully it is written. For every freedom bestowed upon us as citizens, the greater our responsibility. I do listen to those with an informed grievance who exercise their right to free speech with thoughtful and especially creative use of language that garners my attention. Abusive speech and distasteful tatoos are ignored very soon forgotten.

  2. What he was charged with was stalking, which is a behavior and a crime. “The target, who never responded to him and blocked him multiple times, ultimately contacted Colorado police, who charged Counterman for violating the state’s anti-stalking statutes.” The fact that the target blocked him several times, yet he found ways around that effort, which is also a behavior, makes his verdict seem quite reasonable to me. It is clearly NOT a free speech case and IMHO, the court should throw it out, with prejudice.

  3. Speech IS action, and I can think of all kinds of complications dumping the reasonable person standard would bring. Consider the harassment, threats, and doxing from extremist websites (e.g., Daily Stormer), against religious groups and minorities on their hate lists; that all would be protected speech. The persistence and critical mass of communicative harassment and threats would be irrelevant in such cases. The results of such communications would be irrelevant unless intent to cause harm could be established, and prosecutors would be extremely limited in what could be extrapolated from from the communications. Good defense counsel could always move the line separating message from action.

    I suspect the short-fingered vulgarian and his inner circle are watching this one closely, given their potential criminal liability for the events of January 6th.

  4. I published a former Dean and lawyer’s article this morning about his recent actions on behalf of the Merchants of Death War Crimes Tribunal. He was serving subpoenas to Raytheon HQ and the Pentagon.

    When his group arrived at Raytheon, corporate police greeted them and told them they couldn’t protest on the sidewalk in front of the HQ or across the street because Ratheon bought the sidewalk from the City. The “police” even showed them the deeds. The local government allowed the sale of public sidewalks to Raytheon — preventing any assembly by citizens.

    When they arrived at the Pentagon, they got the same greeting from the police, who told them they could only protest in a small gated area away from the vision.

    The Pentagon “police” even knew of their hotel plans after the protest – the national surveillance community eavesdropping on civilians planning to assemble in a grievance.

    Our government and its contractors have moved well beyond respecting our freedoms into an Orweillian dystopia. They are almost begging a lawsuit because they will use up all your resources on legal representation and know the justice system is rigged against us.


  5. Maybe Mr. Counterman’s behavior concerning his language and his perseverance in not just heckling but providing innuendo concerning health and welfare of an individual, was not specific physical action, in other words, a physical face-to-face confrontation, but it definitely seems progressive and could lead to that.

    Remember the old phrase,”give them an inch and they’ll take a mile,”) Will it looks like his conduct was actually actively progressing.

    His conduct was definitely bullying, and is there a difference in telling someone who could be in a bad place, physically or mentally, to kill themselves? And this dude’s conduct was for what reason? Words can kill, and lack of penalty concerning conduct, usually emboldens those who are mentally unstable to take it further. A fixation on an individual or an action, usually leads to action!

    Was this guy using fake identities on his Facebook accounts? If he was, then he knew he was not conducting himself appropriately. Obviously he knew being blocked was a sign he should leave it alone, but he just implemented his workarounds to continue his misconduct! Maybe the guy was what I believe Sheila mentioned a few times over the years, an Incel? And we know that these particular types can evolve into vengeful reprobates who take physical action!

    So, do we shut the barn door after the horse left? Basically waiting until action was taken before attempting to stop it? Well, that won’t work!

    It’s been identified that these individuals, Incels, are definitely a hate group and their insults and taunts should be taken seriously!

    This guy obviously knew his conduct was inappropriate, and he was becoming progressively more aggressive and hiding behind multiple accounts. So, for the safety of this musician, should we be proactive? Protecting a person’s mental and physical well-being against an onslaught of hatred and inappropriate diatribe? Or wait till after the fact, be reactive, after there has been irreversible damage done or even worse? Actually I don’t know if there’s anything worse than irreversible!

    Now, what if this musician was carrying protection? And, this Incel approached with his diatribe and hateful speech? Would fear allow her to pop this dude? Would she end up going to prison because she was being harassed and stalked? Who knows of this guy was or was not surveiling her, so is she within her rights to take action if she feels threatened? It’s a better all the way around to put the kabash on the entire situation.

    An example of this type of thing on a large scale, was Nazi Germany verbally demonizing many groups including the Jews, which led to the Holocaust. Now of course this was on a grand scale, but the “progression portion” should draw attention to the problem. It allowed desensitization, it desensitized the population to allow a wicked action! There is no doubt, this is a form of persecution. Is persecution against the law? Or, should it be allowed? Where is that line drawn? Look at Russia, they openly attack Gays with government permission. They allow the harassment online, and it takes a physical connotation. The same in China with the Uyghurs, rounding them up to be reeducated, by the millions! These things started with verbal threats and propaganda escalating into something more nefarious. Nip it in the bud, and a lot of grief will be avoided.

  6. that social media platform is private. like white castle. Colo. law vague. opens to any altercation. if the social media was contacted,did they have a policy to close that account? or does the social media policy lack any control. seems the issue is suit on the social media company for not comping with its present policy.(they booted trump,why not the little guy) or does the offensive action have to become a national scandal before for profit is trumped by the masses before its policy is upheld? seems the issue here is social media for not,protecting the plaintiff under that state law. do both the defendant and plaintiff reside at the time in Colo.? I would fault the social media co for lack of policy and allowing it to continue to harrass that person. if one ever tried to call or get face-nothing to answer its own faults,it would probably wouldnt exist. seems the profit margin is protected speech on how to ignore its own responsabilities to those who use it. starting a fire intentionally isnt protected speech. whoever was making such comments obviously has a mental issue. now the court will decide if that mental issue is protected. seems like a waste of time unless roberts has a idea to use it as a lever for something else with his backup. seems latley roberts has allowed other complaints to interfere with the whole over needed issues resolved.

  7. Peggy:
    the Colo.law enforcement may have asked that social media to continue its o.k, with allowing said counterman to keep stacking the charges against him ,by allowing him to continue his harrasment/entrapment.

  8. I’m concerned about the part of the Colorado law that says “and does cause that person serious emotional distress.” That seems to require the stalker’s victim to prove serious emotional distress. How does one go about doing that?

  9. IMO this isn’t about what he said/wrote, it is about the fact that he kept doing it. Going after the same person day after day. Kind of like those awful telemarketers.

  10. Counterman appears to be acting, in this person’s supposedly reasonable view, in a threatening manner,
    with malice aforethought, as the saying goes. I believe that a reasonable person would consider his
    actions as intended to do emotional harm to the musician for the purpose, at minimum, of causing her to
    stop the, I’m guessing here, musician’s performances of material he finds distasteful. Or, if indeed he is an
    incel, his motivation is more personal, and her being a musician is beside the point.
    Bertrand Russell said “The fundamental cause of the trouble is that in the modern world the stupid are cocksure,
    while the intelligent are full of doubt.” Combine this with the best car window sticker I have ever seen, “Nothing
    in the world is more dangerous than sincere ignorance and conscientious stupidity,” and you have the reason incels
    do not find their romantic, or sexual, advances reciprocated. AKA: Being an asshole does not endear one to most
    others, and being a stubbornly insistent asshole would prevent one from recognizing one’s own part in the equation!

  11. Sheila, great job explaining how the First Amendment works. I had a lot of trouble explaining it to my classes. They were perplexed that the First Amendment protects offensive, even racist, speech. Great job too explaining that it has to be government action (or non-action) limiting free speech. One thing I hear time and time again is that you have the freedom to speak, but that doesn’t mean you’re free from the consequences of speech…the idea being that Nazis could speak in a public forum, but they can be violently attacked if the public doesn’t like their message. Actually government has an affirmative duty to allow that Nazi speech to take place and may be required to provide security to make sure it’s not interrupted by violence.

    Right now people think their right to speech includes the right to heckle, interrupt, even stop speakers whose message they don’t like. No…your right to free speech doesn’t include a right to stop others from speaking if you don’t like their message.

    I have complained over the years about the ACLU’s approach to constitutional rights being inconsistent…but when it comes to the First Amendment Free Speech Clause, the ACLU has been rock solid over the years.

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