Chilling Victims’ Rights: The Supreme Court Creates a “Pride of Place” for True Threats

Living in the Information Age means that information is literally always at our fingertips. This also means that keeping tabs on one another is as easy as a tap on a screen. The effortless ability to follow another’s life on the internet has led to a sinister phenomenon: cyberstalking. Prosecuting cyberstalking cases poses complex constitutional challenges. Specifically, prosecuting these cases may clash with a perpetrator’s First Amendment right to free speech. However, the First Amendment does not protect all categories of speech. One of those unprotected categories is the category of “true threats.” If a perpetrator’s conduct constitutes a “true threat,” then there can be no First Amendment violation.\nWhile this bedrock principle may sound clear enough, the U.S. Supreme Court never definitively ruled on which standard of proof is required to prove a true threat. Due to this ambiguity, federal courts have applied different standards of proof; some utilized the objective standard while others utilized the subjective standard. However, this ambiguity was resolved in 2023 when the Supreme Court affirmatively rejected the objective standard in Counterman v. Colorado. The Court reasoned that the objective standard created a chilling effect on the First Amendment. However, the Court failed to adequately address the ruling’s impact on cyberstalking victims.\nThis Comment seeks to analyze the Supreme Court’s reasoning in rejecting the objective standard. More specifically, this Comment addresses the Court’s failure to consider the ruling’s one-sided consequences, leaving victims without any of the safeguards that are afforded to their perpetrators. This Comment offers potential remedies for this unjust outcome, including holding social media companies accountable, placing pressure on legislatures to regulate true threats, and urging the Court to revisit its decision.