A look at Counterman v. Colorado, a cyberstalking case SCOTUS is set to consider on April 19 that could have sweeping consequences for online speech writ large
being heard by SCOTUS on Wednesday — a case that could inadvertently strike down a bunch of important protections against online stalking https://www.fastcompany.com/ ... Issie Lapowsky / @issielapowsky : NEW: Cyberstalking is already an underreported, under-enforced crime. Now, a big First Amendment case headed before the Supreme Court this week — Counterman v. Colorado — could make things even tougher for cyberstalking victims. https://www.fastcompany.com/ ...
Context & Ripple Effects
This preview runs one day before the Supreme Court hears Counterman v. Colorado, and it lands in the middle of an unusually crowded online-speech docket: weeks earlier the Court had taken up Gonzalez v. Google over platform recommendations, and the Texas and Florida social-media laws were already queued behind it as the NetChoice cases. Issie Lapowsky's reporting frames the stakes from the victim side — cyberstalking was already underreported and under-enforced, and the question is whether the mens rea standard the Court picks makes prosecution even harder.
The arc resolved two months later with [[a:841565|a 7-2 ruling requiring courts to prove an alleged stalker recklessly disregarded that their words could be read as threats]], which set the bar between the strictest options advocates feared and the most speech-restrictive standard prosecutors wanted.
First-order effects
- Colorado's prosecutors — and every state attorney handling threat cases — now have to prove something about the speaker's mental state, not just the effect of the words, raising the evidentiary load in cases that were already rarely charged.
Second-order effects
- Platforms moderating threats under their own terms of service gain a clearer constitutional reference point at the same moment their removal discretion is being contested in the NetChoice litigation over Texas' and Florida's content laws.
Third-order effects
- If the Court keeps resolving its online-speech docket in favor of speaker-side standards, enforcement against online harassment increasingly shifts from criminal law toward platform policy — making moderation rules, not prosecutions, the de facto protection for victims.
The trend: SCOTUS is assembling a unified First Amendment framework for online speech — Counterman, Gonzalez, and the NetChoice cases are separate rulings converging on how much legal weight platforms, prosecutors, and victims can put on harmful online conduct.