#Counterman v. Colorado

[justinspoliticalcorner]

Ian Millhiser at Vox:

The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas. Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South. For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016. The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock. Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

The reason Claiborne protects protest organizers should be obvious. No one who organizes a mass event attended by thousands of people can possibly control the actions of all those attendees, regardless of whether the event is a political protest, a music concert, or the Super Bowl. So, if protest organizers can be sanctioned for the illegal action of any protest attendee, no one in their right mind would ever organize a political protest again. Indeed, as Fifth Circuit Judge Don Willett, who dissented from his court’s Mckesson decision, warned in one of his dissents, his court’s decision would make protest organizers liable for “the unlawful acts of counter-protesters and agitators.” So, under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

The Fifth Circuit’s Mckesson decision is obviously wrong

Like Mckesson, Claiborne involved a racial justice protest that included some violent participants. In the mid-1960s, the NAACP launched a boycott of white merchants in Claiborne County, Mississippi. At least according to the state supreme court, some participants in this boycott “engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers” of these white businesses. Indeed, one of the organizers of this boycott did far more to encourage violence than Mckesson is accused of in his case. Charles Evers, a local NAACP leader, allegedly said in a speech to boycott supporters that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”

With SCOTUS refusing to take up McKesson v. Doe, the 5th Circuit's insane anti-1st Amendment ruling that effectively bans mass protests remains in force for the 3 states covered in the 5th: Texas, Louisiana, and Mississippi.

#SCOTUS #Deray McKesson #Protests #Black Lives Matter #5th Circuit Court #Texas #Louisiana #Mississippi #1st Amendment #Counterman v. Colorado #NAACP v. Claiborne Hardware #McKesson v. Doe

[odinsblog]

Stalking is so closely correlated with lethal violence that experts refer to it as “slow motion homicide”: More than half of all female homicide victims in the U.S. were stalked before they were killed. Despite the terrifying and dangerous consequences, many victims of stalking do not report the abuse to law enforcement for fear they will not be taken seriously.

The reasonableness of that fear was vividly illustrated by the Supreme Court oral arguments in Counterman v. Colorado on Wednesday morning, as members of the highest court of the land joked about messages sent by a stalker to his victim, bemoaned the increasing “hypersensitivity” of society, and brushed aside consideration of the actual harm of stalking to focus on the potential harm of stalking laws.

For nearly two years, Billy Raymond Counterman sent thousands of unsolicited and unwanted Facebook direct messages to C.W., a local musician, ultimately driving her to abandon her career and leave the state. Counterman, who had previously served time in federal prison for making violent threats against his ex-wife and her family, argues that his conduct towards C.W. was free speech protected by the First Amendment. Counterman maintains, supported by amicus briefs from influential civil libertarian organizations such as the ACLU, the EFF, and FIRE, that stalking cannot be criminally prohibited except when the government can prove that the stalker subjectively intended to terrify his victim. The state of Colorado, supported by amicus briefs from First Amendment scholars, stalking experts, and domestic violence victim advocates, argues that it is enough to prove that the stalking would be terrifying to a reasonable person in light of the totality of the circumstances. If the court rules in Counterman’s favor, delusional stalking—no matter how objectively terrifying or threatening—will be transformed into an inviolable constitutional right.

During oral argument, Chief Justice John Roberts quoted a handful of the thousands of unsolicited messages Counterman sent to C.W. “Staying in cyber life is going to kill you,’” Roberts read aloud. After a pause, he joked, “I can’t promise I haven’t said that,” prompting laughter from other justices and the audience. Picking out another message, which he described as an “image of liquor bottles” captioned as “a guy’s version of edible arrangements,” Roberts challenged Colorado Attorney General Phil Weiser to “say this in a threatening way,” leading to more laughter from the court. And the laughs didn’t stop there: Counterman’s attorney, John Elwood, shared with the court that his mother would routinely tell him to “drop dead” as a child, but “you know, I was never in fear because of that.”

(continue reading)

#politics #scotus #john roberts #stalking #femicide #misogyny #rape culture #war on women #counterman v colorado #stalkers

[soon-palestine]

Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South.

For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016.

The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock.

Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

The reason Claiborne protects protest organizers should be obvious. No one who organizes a mass event attended by thousands of people can possibly control the actions of all those attendees, regardless of whether the event is a political protest, a music concert, or the Super Bowl. So, if protest organizers can be sanctioned for the illegal action of any protest attendee, no one in their right mind would ever organize a political protest again.

Indeed, as Fifth Circuit Judge Don Willett, who dissented from his court’s Mckesson decision, warned in one of his dissents, his court’s decision would make protest organizers liable for “the unlawful acts of counter-protesters and agitators.” So, under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

#palestine #gaza #free palestine

[dragoneyes618]

"Last week, the presidents of Harvard, MIT, and the University of Pennsylvania were called to testify before Congress about the alarming rise of anti-Semitism on their campuses, and their tepid responses to it, in the wake of October 7.

By now, you have probably heard about the trio’s horrendous overall performance, punctuated by their smug inability to respond to the simple question of whether calling for the genocide of Jews violates their schools’ codes of conduct. Since that time, the president of UPenn has stepped down, and support for the other two is wavering.

In case you are wondering, their answer should have been an unequivocal “yes, it violates our polices.” The right to free speech is fundamental, but it does have limits: The First Amendment is not a pass to threaten, harass, intimidate or otherwise violate the rights of others.

For the record, even those pundits who (incorrectly) defended the university presidents’ testimony as being legally correct, if morally tone deaf, had to admit that it did represent a glaring double standard. Each of these universities has in recent years protected other minority groups from even “micro-aggressions” by effectively and ruthlessly shutting down speech that their leaders find offensive.

Struggling to answer whether calls for genocide against Jews constitutes bullying, after you have already officially labeled “fatphobia” as “violence” and “using the wrong pronoun” as a form of “abuse,” is pathetic, and to see these schools pretending that they are genuinely concerned about free speech all of a sudden is nothing short of laughable. In the Foundation for Individual Rights and Expression’s 2024 College Free Speech Rankings, for example, out of 248 US campuses, Penn and Harvard were ranked 247th and 248th, respectively. If you are only concerned about shutting down speech when that speech targets Jews, well, there is a word for that.

How Free Is Free Speech?

The First Amendment does not protect trespassing, vandalism, harassment, assault, or the destruction of property. Nor does it protect speech that is not meant to inform or persuade, but to disrupt lawful endeavors —activities like going to the kosher dining hall or studying in a library. The First Amendment does not protect someone who is making true threats, nor does it protect intimidation — “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

Just a few months ago, in Counterman v. Colorado (2023), the United States Supreme Court clarified that this does not necessarily mean that the person speaking actually intended to threaten the victim. Rather, the Court imposed a recklessness standard — i.e., the First Amendment does not protect a person who consciously disregards a substantial risk that his communications would be viewed as threatening violence. To be clear, calling for the genocide of Jews, as the pro-Hamas student groups on campus have consistently been doing, does create a hostile environment for Jewish people on campus, violates Title VI of the Civil Rights Act of 1964, and is not protected by the First Amendment.

It was obvious that all three university presidents were reading off scripts written by their respective attorneys (several of whom were sitting behind them and nodding throughout the hearing). The question then becomes: What now? What is the critical error that their lawyers (and the general counsels at other universities where Jewish students are being targeted) have made in failing to stand up for Jewish people, and how should they immediately correct it?

The answer is simple, and it is exactly what students, parents, donors, and the government alike should all be demanding from these institutions: They should continue to respect the First Amendment, but they should apply the appropriate standard for speech on a campus.

From a legal perspective, it is easy to see where the university legal counsels’ confusion specifically arose. Those horrible answers were written under the assumption that the only limits a university can put on student speech are the limits contemplated in the foundational Supreme Court First Amendment case of Brandenburg v. Ohio (1969).

In that case, regarding speech at a KKK rally, the Court held that a state could only punish speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg is famously a very high standard, and that is precisely where the universities are hiding: Despite the hundreds of anecdotal incidents from the last two months, and notwithstanding all of the well-known studies confirming that inflammatory discriminatory anti-Semitic rhetoric leads directly to anti-Semitic violence, officials are telling students and parents and now Congress that their hands are tied because, in most cases, there has not been direct enough incitement.

Campus Standards Are Different

Now, the truth is that even under the Brandenburg standard, schools can still impose reasonable time, place, and manner restrictions. As the Court in Grayned v. City of Rockford (1972) explained: “The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.”

So even under that paradigm, any activities that disrupt the educational enterprise and functioning of a school may be restricted. Common sense dictates that rallies celebrating calls for anti-Semitic genocide disrupt the educational enterprise and functioning of a school because they leave some students genuinely fearful for their lives.

But that argument is also unnecessary, because Brandenburg is absolutely the wrong standard for schools to be using, and university presidents and lawyers need to correct that mistake as soon as possible.

In Tinker v. Des Moines (1969), the Supreme Court explained that the Constitution does allow for schools to shut down speech that will “materially and substantially interfere” with the “requirements of appropriate discipline” in the operation of the school” or that “invad[es] the rights of others.” That is the standard that these schools must now vigilantly enforce.

Of course, private colleges and universities, like Harvard, Penn, and MIT, can restrict certain speech, conduct, and demonstrations, in most cases, without triggering any constitutional issues. But even a public university is not a public street, and the rules for what speech must be allowed on each are very different.

The Supreme Court in Healy v. James (1972) cited Tinker to hold that university officials do not have to tolerate student activities that breach reasonable campus rules; interrupt the educational process; or interfere with other students’ rights to receive an education. (This is especially true when the student speech is happening in school-sponsored forums, or is reasonably perceived as somehow bearing the school’s imprimatur.)

The Court has also repeatedly held (in Bethel v. Fraser [1986] and Hazelwood v. Kuhlmeier [1988]) that schools have even greater latitude to limit student expression if they can establish a “legitimate pedagogical concern.” Ensuring that all students — including Jewish students — have a safe and harassment-free environment in which to learn should be an overwhelmingly legitimate pedagogical concern.

Under the Tinker line of cases, schools do not even have to wait for a breach to actually occur; administrators can act if they can “reasonably forecast” that the expression in question would disrupt school discipline or operation, or violate the rights of other students. In Melton v. Young, for example, the Court ruled that schools could prohibit the wearing of a Confederate flag jacket because it was reasonable to assume that it would be disruptive in an environment of heightened racial tension.

Waving a Hamas flag and cheering on slaughter, as bodies are still being identified and hostages are still being held, announcing solidarity with the “resistance” and that “armed struggle” — i.e., murder —“is “legitimate,” and yes, calling for the genocide of Jews, are all behaviors that are no less likely to cause a disruption than a jacket.

Tinkering with Free Speech

Under Tinker, it is more than reasonable to forecast that there will be substantial disruptions that would violate the right of Jewish students to a non-hostile educational environment if groups are allowed to host events that glorify and celebrate the murder of Jews.

Schools can and must act now to prevent that from continuing to happen, using both common sense and the relevant case law to draw the appropriate line. The limits on the First Amendment are there to help the government with its primary responsibility —to protect all of its citizens from harm —and authorities must be constantly vigilant to enforce the law correctly.

Regardless, the answer to “what now?” then, is this: Everyone calling for change should articulate what that change is, and institutions fixing their policies should clearly explain how they will “tinker” with their free speech formulas so that the next time their leaders are asked if calling for a Jewish genocide is problematic, the answer can just be “yes.”

-Goldfeder, M. (2023g, December 13). Poison Ivies - Mishpacha Magazine. Mishpacha Magazine - The premier Magazine for the Jewish World. https://mishpacha.com/poison-ivies/

#antisemtism #colleges #campus #antisemitism on campus #harvard #mit #university of pennsylvania #jumblr

[pscottm]

The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas.

Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South.

For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016.

The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock.

Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

The reason Claiborne protects protest organizers should be obvious. No one who organizes a mass event attended by thousands of people can possibly control the actions of all those attendees, regardless of whether the event is a political protest, a music concert, or the Super Bowl. So, if protest organizers can be sanctioned for the illegal action of any protest attendee, no one in their right mind would ever organize a political protest again.

Indeed, as Fifth Circuit Judge Don Willett, who dissented from his court’s Mckesson decision, warned in one of his dissents, his court’s decision would make protest organizers liable for “the unlawful acts of counter-protesters and agitators.” So, under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

[jennbarrigar]

[masterofd1saster]

CJ court watch - free speech - threats case

SCt decided Counterman v. Colorado, 600 U. S. ____ (2023) on June 27, 2023.  Decision was more or less 7 - 2, and J. Kagan wrote for the majority.

From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician.  [They never met, he was a fb stalker, and many of the messages were angry or threatening.  She found them disturbing, and she radically changed how she lived her life.]

Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and therefore could not form the basis of a criminal prosecution. In line with Colorado law, the trial court assessed the true-threat issue using an “objective ‘reasonable person’ standard.” People v. Cross, 127 P. 3d 71, 76 (Colo. 2006). Under that standard, the State had to show that a reasonable person would have viewed the Facebook messages as threatening. By contrast, the State had no need to prove that Counterman had any kind of “subjective intent to threaten” C. W. In re R. D., 464 P. 3d 717, 731, n. 21 (Colo. 2020). The court decided, after “consider[ing] the totality of the circumstances,” that Counterman’s statements “r[o]se to the level of a true threat.” 497 P. 3d, at 1045. Because that was so, the court ruled, the First Amendment posed no bar to prosecution. The court accordingly sent the case to the jury, which found Counterman guilty as charged. 

The Colorado Court of Appeals affirmed***

fn2 -  The question in this case arises when the defendant *** understands the content of the words, but may not grasp that others would find them threatening. Must he do so, under the First Amendment, for a true-threats prosecution to succeed?***

“True threats” of violence is another historically unprotected category of communications. Virginia v. Black, 538 U. S. 343, 359 (2003); see United States v. Alvarez, 567 U. S. 709, 717–718 (2012) (plurality opinion). The “true” in that term distinguishes what is at issue from jests, “hyperbole,”  or other statements that when taken in context do not convey a real possibility that violence will follow (say, “I am going to kill you for showing up late”). Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam). True threats are “serious expression[s]” conveying that a speaker means to “commit an act of unlawful violence.” Black, 538 U. S., at 359. Whether the speaker is aware of, and intends to convey, the threatening aspect of the message is not part of what makes a statement a threat, as this Court recently explained. See Elonis v. United States, 575 U. S. 723, 733 (2015). The existence of a threat depends not on “the mental state of the author,” but on “what the statement conveys” to the person on the other end. Ibid. When the statement is understood as a true threat, all the harms that have long made threats unprotected naturally follow. True threats subject individuals to “fear of violence” and to the many kinds of “disruption that fear engenders.” Black, 538 U. S., at 360 (internal quotation marks omitted). The facts of this case well illustrate how.3 Yet the First Amendment may still demand a subjective mental-state requirement shielding some true threats from liability. The reason relates to what is often called a chilling effect. Prohibitions on speech have the potential to chill, or deter, speech outside their boundaries. A speaker may be unsure about the side of a line on which his speech falls.***   : “[B]y reducing an honest speaker’s fear that he may accidentally [or erroneously] incur liability,” a mens rea requirement “provide[s] ‘breathing room’ for more valuable speech.” Alvarez, 567 U. S., at 733 (Breyer, J., concurring in judgment). 

That kind of “strategic protection” features in our precedent concerning the most prominent categories of historically unprotected speech. Gertz, 418 U. S., at 342. Defamation is the best known and best theorized example. False and defamatory statements of fact, we have held, have “no constitutional value.” Id., at 340; see Alvarez, 567 U. S., at 718–719 (plurality opinion). Yet a public figure cannot recover for the injury such a statement causes unless the speaker acted with “knowledge that it was false or with reckless disregard of whether it was false or not.”***

recklessness is morally culpable conduct, involving a “deliberate decision to endanger another.” Voisine, 579 U. S., at 694. In the threats context, it means that a speaker is aware “that others could regard his statements as” threatening violence and “delivers them anyway.”***

It is time to return to Counterman’s case, though only a few remarks are necessary. Counterman, as described above, was prosecuted in accordance with an objective standard. See supra, at 3. The State had to show only that a reasonable person would understand his statements as threats. It did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment. 

We accordingly vacate the judgment of the Colorado Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.***

[desing001]

COUNTERMAN v COLORADO pode LIMITAR LIBERDADE de EXPRESSÃO da PRIMEIRA EM...

#youtube

[aronarchy]

Chief Justice John Roberts’ Mockery of Stalking Victims Points to a Deeper Problem

By Mary Anne Franks April 21, 2023

Stalking is so closely correlated with lethal violence that experts refer to it as “slow motion homicide”: More than half of all female homicide victims in the U.S. were stalked before they were killed. Despite the terrifying and dangerous consequences, many victims of stalking do not report the abuse to law enforcement for fear they will not be taken seriously.

The reasonableness of that fear was vividly illustrated by the Supreme Court oral arguments in Counterman v. Colorado on Wednesday morning, as members of the highest court of the land joked about messages sent by a stalker to his victim, bemoaned the increasing “hypersensitivity” of society, and brushed aside consideration of the actual harm of stalking to focus on the potential harm of stalking laws.

For nearly two years, Billy Raymond Counterman sent thousands of unsolicited and unwanted Facebook direct messages to C.W., a local musician, ultimately driving her to abandon her career and leave the state. Counterman, who had previously served time in federal prison for making violent threats against his ex-wife and her family, argues that his conduct towards C.W. was free speech protected by the First Amendment. Counterman maintains, supported by amicus briefs from influential civil libertarian organizations such as the ACLU, the EFF, and FIRE, that stalking cannot be criminally prohibited except when the government can prove that the stalker subjectively intended to terrify his victim. The state of Colorado, supported by amicus briefs from First Amendment scholars, stalking experts, and domestic violence victim advocates, argues that it is enough to prove that the stalking would be terrifying to a reasonable person in light of the totality of the circumstances. If the court rules in Counterman’s favor, delusional stalking—no matter how objectively terrifying or threatening—will be transformed into an inviolable constitutional right.

During oral argument, Chief Justice John Roberts quoted a handful of the thousands of unsolicited messages Counterman sent to C.W. “Staying in cyber life is going to kill you,” Roberts read aloud. After a pause, he joked, “I can’t promise I haven’t said that,” prompting laughter from other justices and the audience. Picking out another message, which he described as an “image of liquor bottles” captioned as “a guy’s version of edible arrangements,” Roberts challenged Colorado Attorney General Phil Weiser to “say this in a threatening way,” leading to more laughter from the court. And the laughs didn’t stop there: Counterman’s attorney, John Elwood, shared with the court that his mother would routinely tell him to “drop dead” as a child, but “you know, I was never in fear because of that.”

There were more chuckles when Justice Neil Gorsuch returned to Elwood’s anecdote during his questioning of Weiser, but Gorsuch shifted to a more serious tone to express his concern about the reasonable person standard. “We live in a world in which people are sensitive, and maybe increasingly sensitive,” he began. “As a professor, you might have issued a trigger warning from time to time when you had to discuss a bit of history that’s difficult or a case that’s difficult,” Gorsuch continued, a reference to Weiser’s prior experience teaching on a law school faculty. “What do we do in a world in which reasonable people may deem things harmful, hurtful, threatening? And we’re going to hold people liable willy-nilly for that?”

Justice Clarence Thomas echoed the concern, asking whether the reasonable person standard is appropriate given that people are “more hypersensitive about different things now.” Justice Amy Coney Barrett pressed the point as well, offering the following hypothetical: What if a college professor gives a lecture “about just how vicious it was to be in a Jim Crow south and puts up behind them on a screen a picture of a burning cross and reads aloud some threats of lynching that were made at the time” and “Black students sitting in the classroom” interpret the lecture as a physical threat “because they don’t understand it”?

The justices’ message was clear: Stalking is not the problem; sensitivity is. To them, stalking is quite literally a state of mind: If the stalker didn’t mean for his conduct to be frightening, then it isn’t. All the target has to do is understand that; she just needs to lighten up, take a joke, accept the compliment, grasp the lesson. Just because someone has made objectively terrifying statements is no reason to overreact and get law enforcement involved; victims should wait for the stalker to do something really frightening before they jump to conclusions.

One of the many painful ironies of this logic is that many stalking victims have already internalized it. Less than half of stalking victims seek help from law enforcement, in large part because they believe that the matter isn’t serious enough or that they can handle it on their own. Even the victims who do seek help from law enforcement will often not get it—police take no action at all in nearly half of all reported cases, and only make arrests in 7.7 percent of cases. If victims are lucky, their stalker will eventually lose interest and cease contact. If they’re not lucky, they end up dead.

The court’s discussion was so disconnected from the reality of stalking, so contemptuous of the victims targeted by it, and so awkwardly punctuated with culture-war buzzwords with no obvious bearing to the topic at hand, that it was sometimes hard to believe it was taking place within the Supreme Court and not a Fox News talk show. Perhaps nothing else could be expected from a far-right dominated court that has made its hostility to women and racial minorities abundantly clear. But the progressive justices did little to push back against the chief justice’s snickering tone, or to critique these efforts to turn an oral argument about stalking into a referendum on the supposed crisis of “hypersensitivity.”

Of course, had the conservative justices’ professed concern about “increased hypersensitivity” been sincere, there would be no need to reach for strained hypotheticals about college students overreacting to a lecture about the history of racism in the U.S. The actual, concerted, and ongoing efforts by GOP politicians to prohibit such a lecture from ever occurring in the first place is a far more apt example of fragility and intellectual cowardice. For that matter, there are a number of current Supreme Court justices who would provide excellent examples of hypersensitivity: Justice Thomas characterizing questions about credible sexual harassment allegations during his confirmation hearing as a “high-tech lynching”; Justice Brett Kavanaugh declaring that “[m]y family and my name have been totally and permanently destroyed” by questions about credible sexual assault claims during his confirmation hearing; Justice Samuel Alito declaring that “saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”

One might have hoped that the recent rise in threats against the judiciary might have made the justices more empathetic to the harms of stalking. The Supreme Court’s 2024 budget request reflects heightened concern for judicial security, seeking nearly $6 million in new security funding because “[o]n-going threat assessments show evolving risks that require continuous protection.” In his 2022 Year-End Report on the Federal Judiciary, Roberts praised new legislation that protects the privacy of personal information about judges and their families, writing that “we must support judges by ensuring their safety. A judicial system cannot and should not live in fear.” That, apparently, is only an appropriate fate for everyone else.

https://twitter.com/NBedera/status/1649795373295190017

I cannot emphasize enough how often a perpetrator gets away with it because the person overseeing the case says: “Well, if that’s stalking/sexual assault/intimate partner violence, then I would be a perpetrator too.”

Sometimes, these comments reflect a deep misunderstanding about what violence is.

Other times, it’s just a statement of fact. A recognition that the adjudicator has been violent in the past and sees protecting the perpetrator as a form of protecting themselves.

We do not see committing acts of violence as disqualifying for working as a judge, prosecutor, police officer, HR rep, or Title IX administrator.

And, yes, that means that a victim often has to plead another perpetrator to take action to protect them.

#repost of someone else’s content #Slate #twitter repost #Nicole Bedera #stalking #abuse #misogyny #feminism

[sion5]

In Counterman v. Colorado, the Supreme Court has mocked victims of harassment.

[swingleftnewsjunkie]

#supreme court #true threat #democracy #democratic party #american politics #us government #political #us politics #politics #us house of representatives #us congress