Amicus Curiae Brief — Billy Raymond Counterman, Petitioner v. Colorado

Supreme Court briefMar 31, 2023

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No. 22-138

In the Supreme Court of the United States

BILLY RAYMOND COUNTERMAN,

Petitioner,

THE PEOPLE OF THE STATE OF COLORADO,

Respondent.

________________________________________________

On Writ of Certiorari to the Colorado Court of

Appeals, Division II

BRIEF OF FIRST AMENDMENT SCHOLARS

AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

________________________________________________

Mary Anne Franks

Jeffrey A. Mandell*

1311 Miller Drive

Erin K. Deeley

Coral Gables, FL 33146

Carly Gerads

786.860.2317

STAFFORD ROSENBAUM LLP

Counsel for Amici Curiae 222 West Washington Ave.

#900

P.O. Box 1784

Madison, WI 53701

608.256.0226

jmandell@staffordlaw.com

*Counsel of Record

TABLE OF CONTENTS

INTEREST OF AMICI ................................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT................................................................2

ARGUMENT................................................................3

II.

The First Amendment Does Not Require

A Specific-Intent Element For Laws That

Criminalize Stalking And Other Threats ........3

Historically unprotected categories

of speech can generally be regulated

irrespective of the speaker’ motive .........5

There is no clear historical predicate

for a motive requirement ........................9

Threats and stalking are uniquely

harmful even among unprotected

categories of speech ...............................11

Stalkers’ motives do not determine

their dangerousness ..............................16

A Motive Requirement For True Threats

Undermines, Rather Than Protects,

Important First Amendment Values .............18

The marketplace of ideas ......................18

The remedy of counter-speech .............. 22

III.

The right to associate, or not ................23

Avoiding chilling valuable speech ........24

The First Amendment as a “safety

valve” .....................................................26

Accepting Petitioner’s Argument Would

Have Dire Consequences For Victims Of

Stalking, Discrimination, And Other

Forms Of Abuse ..............................................28

A motive requirement will give

stalkers a roadmap for avoiding

prosecution ............................................28

A motive requirement will undermine

the victim’s ability to obtain civil

protection orders ...................................31

A motive requirement will have

broader repercussions for victims

of discrimination and other forms

of abuse ..................................................32

Harassment and discrimination

under Title VII .............................32

Nonconsensual pornography

laws...............................................34

CONCLUSION ..........................................................36

iii

TABLE OF AUTHORITIES

Cases

Brandenburg v. Ohio,

395 U.S. 444 (1969).......................................... 10, 11

Cantwell v. Connecticut,

310 U.S. 296 (1940)..................................................6

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942)..................................................6

Cohen v. California,

403 U.S. 15 (1971)....................................................6

Davenport v. Washington Educ. Ass’n,

551 U.S. 177 (2007)................................................18

Ellison v. Brady,

924 F.2d 872 (9th Cir.1991) ....................................33

Elonis v. United States,

575 U.S. 723 (2015)........................................ passim

FCC v. Pacifica Found.,

438 U.S. 726 (1978)................................................23

FEC v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007)........................................ 4, 5, 18

Hamling v. United States,

418 US 87 (1974)......................................................7

Harris v. Forklift Sys., Inc.,

510 U.S. 17 (1993)............................................ 32, 33

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010).................................................. 4, 5

Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988)..................................................18

Masson v. New Yorker Magazine, Inc.,

501 U.S. 496 (1991)..................................................8

NAACP v. Button,

371 U.S. 415 (1963)................................................25

New York State Rifle & Pistol Ass'n v. Bruen,

142 S. Ct. 2111 (2022)............................................10

New York Times Co. v. Sullivan,

376 U.S. 254 (1964)............................................ 7, 31

Newton v. Dep’t of Air Force,

85 F.3d 595 (Fed.Cir.1996) ....................................33

Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998)............................................ 33, 34

People v. Austin,

155 N.E.3d 439 (Ill. 2019),

cert denied, 141 S.Ct. 233 (2020) ...........................36

People v. Counterman,

497 P.3d 1039 (Colo. App. 2021)......................20, 25

Philadelphia Newspapers, Inc. v. Hepps,

475 U.S. 767 (1986)..................................................7

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994)................................................18

United States v. Alvarez,

567 U.S. 709 (2012)................................................22

United States v. Stevens,

559 U.S. 460 (2010)..................................................6

United States v. White,

670 F.3d 498 (4th Cir. 2012)..................................11

United States v. White,

810 F.3d 212 (4th Cir. 2016)..................................11

Vaughn v. Pool Offshore Co.,

683 F.2d 922 (5th Cir.1982)...................................33

Watts v. United States,

394 U.S. 705 (1969)................................................25

Whitney v. California,

274 U.S. 357 (1927)................................................26

Statutes

18 U.S.C.§ 2261A.......................................................26

18 U.S.C. § 2339B........................................................4

720 Ill. Comp. Stat., ch. 5, § 11-23.5 .........................34

Colo. Rev. Stat. § 18-3-602 ............................ 23, 25, 26

Fla. Stat. § 784.049 ................................................... 34

Other Authorities

4 W. Blackstone, COMMENTARIES ON THE

LAWS OF ENGLAND 253 (1769)................................10

Angela W. Eke et al., Predictors of Recidivism

by Stalkers: A Nine-Year Follow-Up of Police

Contacts, 29 BEHAV. SCI. & LAW 271 (2011)..........14

Asia A. Eaton et al., 2017 Nationwide Online

Study of Nonconsensual Porn Victimization

and Perpetration: A Summary Report

(June 12, 2017).......................................................34

Barry Rosenfeld, Recidivism in Stalking and

Obsessional Harassment, 27 LAW & HUM.

BEHAV. 251 (2003) ..................................................14

Barry Rosenfeld, Violence Risk Factors in

Stalking and Obsessional Harassment,

31 CRIM. JUST. & BEHAV. 9 (2004) .........................12

vii

Brieanna Charlebois, 'Homicide in slow motion':

Police urged to tackle stalking in wake of

Coquitlam woman's murder, VANCOUVER

SUN, (Jan. 22, 2023) ...............................................12

Chief Justice John G. Roberts, Jr., 2022 YearEnd Report on the Federal Judiciary

(Dec. 31, 2022)........................................................15

Eugene Volokh, The Freedom of Speech

and Bad Purposes,

63 UCLA L. Rev. 1366 (2016) .................... 5, 6, 8, 11

Frances P. Churcher et al., Risk Factors for

Violence in Stalking Perpetration: A MetaAnalysis, 7 FWU J. OF SOC. SCI. 100 (2013) ..........13

Jessica K. Formichella, A Reckless Guessing

Game: Online Threats Against Women in

the Aftermath of Elonis v. United States,

41 SETON HALL LEGIS. J. 117 (2016) .....................20

Jessica Miles, Straight Outta SCOTUS:

Domestic Violence, True Threats, and Free

Speech, 74 U. MIAMI L. REV. 711 (2020) ........ passim

Jonathon W. Penney, Understanding Chilling

Effects, 106 MINN. L. REV. 1451 (2022) ........... 19, 24

Judith M. McFarlane et al., Stalking and

Intimate Partner Femicide, 3 HOMICIDE

STUDIES 300 (1999) ................................................11

viii

Katrina Baum et al., Bureau of Justice Statistics,

Department of Justice, Stalking Victimization

in the United States (2009) ....................................12

Leana A. Bouffard et al, Still in the Shadows:

The Unresponsiveness of Stalking Prosecution

Rates to Increased Legislative Attention,

73 J. OF CRIM. JUST. 2 (Mar.–Apr. 2021) ......... 30, 31

Leslie Kendrick, Speech, Intent, and the Chilling

Effect, 54 WM. & MARY L. REV. 1633 (2013) .........24

Lili Levi, Racialized, Judaized, Feminized:

Identity-Based Attacks on the Press, 20 FIRST

AMEND. L. REV. 147, 165–66 (2022) ......................20

Maeve Duggan, Online Harassment 2017, PEW

RESEARCH CENTER, (July 11, 2017) .......................19

Maria Cramer and Jesus Jiménez, Armed

Man Traveled to Justice Kavanaugh’s Home

to Kill Him, Officials Say, N.Y. TIMES

(June 9, 2022)................................................... 15, 16

Martin Redish, MONEY TALKS: SPEECH, ECONOMIC

POWER, AND THE VALUES OF DEMOCRACY (2001) .....4

Mary Anne Franks, “Revenge Porn” Reform:

A View from the Front Lines,

69 FLA. L. REV. 1251, 1290 (2017) .........................34

National Public Radio, Unprecedented: A

Thousand Ways to Kill You (Dec. 18, 2019)..........29

Paul E. Mullen & Michele Pathé, Stalking,

29 CRIME & JUST. 273 (2002) ......................... passim

Paul E. Mullen et al, A Study of Stalkers,

156 AM. J. OF PSYCH. 1244 (1999)..........................17

Press Release, United States Attorney’s Office,

Middle District of Pennsylvania, Northampton

County Man Convicted of Cyberstalking

(Aug. 8, 2022) .........................................................29

Rachel E. Morgan & Jennifer Truman,

Bureau of Justice Statistics, Stalking

Victimization (2021)...............................................14

Rachel E. Morgan & Jennifer Truman,

Bureau of Justice Statistics, Stalking

Victimization (2022)...............................................30

Sarah N. Lynch, U.S. judges faced over 4,500

threats in 2021 amid rising extremism,

REUTERS (Feb. 5, 2022) ..........................................15

Thomas Emerson, TOWARD A GENERAL THEORY

OF THE FIRST AMENDMENT (1967) ..........................27

Tierney Sneed and Devan Cole, Supreme Court

asks Congress for more security money due to

threats, CNN (Mar. 9, 2023) ..................................16

U.S. Dep’t of Justice, 2014 Report to Congress

Grant Funds Used to Address Stalking

(Jan. 2017)..............................................................12

U.S. Dep’t of Justice, Office of Violence Against

Women, 2014 Report to Congress, Grant Funds

Used to Address Stalking (2017) ...........................30

U.S. Dep’t of Justice, Project to Develop a

Model Anti-Stalking Code for States (1993) .........13

U.S. Dep't of Justice, Stalking in America:

Findings from the National Violence Against

Women Survey (April 1998) ...................................13

Victoria Killion, Cong. Rsch. Serv., LSB10723,

Federal Civil Action for Disclosure of Intimate

Images: Free Speech Considerations (2022) ..........35

Wayne R. LaFave, SUBSTANTIVE CRIMINAL LAW

§ 10.4 (3d ed. 2022) ................................................27

INTEREST OF AMICI

Amici are law school professors and legal

scholars with deep expertise in First Amendment

doctrine and practice.1 They have taught courses,

published articles and books, and devoted scholarly

attention to constitutional law and the First

Amendment free speech clause. Based on their

expertise and experience, they seek to draw the

Court’s attention to the well-established, historical

support for an objective standard in determining true

threats and to highlight the costs a subjective

standard would impose on free speech generally, and

to individuals and communities targeted by stalking

in particular.

Amici join on their own behalf and not as

representatives of their universities. Amici are:

Dean Erwin Chemerinsky

Jesse H. Choper Distinguished Professor of Law

Berkeley Law School

Professor Danielle Citron

Jefferson Scholars Foundation Schenck

Distinguished Professor in Law

Caddell and Chapman Professor of Law

1 Amici state that no party’s counsel authored the brief in whole

or in part; no party’s counsel contributed money that was

intended to fund preparing or submitting the brief; and no

person—other than Amici—contributed money that was

intended to fund preparing or submitting the brief.

University of Virginia School of Law

Professor Michael C. Dorf

Robert S. Stevens Professor of Law

Cornell Law School

Professor Mary Anne Franks

Michael R. Klein Distinguished Scholar Chair

University of Miami School of Law

Professor Eric J. Segall

Ashe Family Chair Professor of Law

Georgia State University College of Law

Professor Cristina Tilley

Professor of Law

Iowa College of Law

INTRODUCTION AND

SUMMARY OF ARGUMENT

There is no inviolable First Amendment right

to engage in a prolonged, objectively terrorizing

campaign of stalking against another person. Stalking

is a uniquely dangerous form of conduct that provides

the clearest possible case for a constitutional rule that

general intent—as opposed to a specific intent—is all

that is required for the regulation and prosecution of

the historically unprotected category of true threats.

While stalkers frequently fail to grasp the objective

reality of their actions, this capacity for delusion

makes them more, not less, dangerous. Stalkers often

believe that their victims should welcome rather than

fear their attention, but the First Amendment does

not require objectively terrifying conduct to receive

heightened constitutional protection simply because it

is based on an unreasonable belief or expectation. A

specific-intent requirement for stalking and other

threats undermines, rather than protects, First

Amendment values, including by depleting the

marketplace of ideas, inhibiting counter-speech, and

interfering with individual autonomy and association.

Such a requirement also jeopardizes other important

legal protections that rely on objective, contextspecific standards.

ARGUMENT

The First Amendment Does Not Require A

Specific-Intent Element For Laws That

Criminalize Stalking And Other Threats

The thrust of Petitioner’s argument is that

there is an inviolable constitutional right to engage in

a prolonged, objectively terrorizing campaign of

stalking against another person, so long as the

government cannot prove beyond a reasonable doubt

that the stalker has a specific desire to threaten the

victim. If, as here, the stalker is motivated by the

desire to enter a relationship with an entirely

unwilling victim, Petitioner’s position would leave the

state powerless to punish or deter the stalking, no

matter how objectively terrorizing it is or how

pervasive or how lengthy it becomes. Such a startling

claim has no grounding in “well-accepted First

Amendment doctrine,” which recognizes both that “a

speaker’s motivation is entirely irrelevant to the

question of constitutional protection,” FEC v. Wis.

Right to Life, Inc., 551 U.S. 449, 468 (2007) (plurality

op. of Roberts, C.J.) (quoting Martin Redish, MONEY

TALKS: SPEECH, ECONOMIC POWER, AND THE VALUES OF

DEMOCRACY 91 (2001)), and that “there is no historical

practice requiring more than general intent when a

statute regulates speech,” Elonis v. United States, 575

U.S. 723, 755 (2015) (Thomas, J., dissenting).

A prime example of these principles can be

found in Holder v. Humanitarian Law Project, 561

U.S. 1 (2010). There, this Court faced a First

Amendment challenge to the federal law making it a

crime to “knowingly provid[e] material support or

resources to a foreign terrorist organization.” 18

U.S.C. § 2339B(a)(1). The challengers in Holder—a

collection of individuals and nonprofits—argued that

the material-support statute could only be

constitutionally applied to those who had the “specific

intent to further [an] organization’s terrorist

activities,” and did not apply to well-intentioned

speech, such as teaching designated terrorist

organizations “how to use humanitarian and

international law to peacefully resolve disputes” and

“how to petition various representative bodies such as

the United Nations for relief.” 561 U.S. at 17, 21–22.

The Court rejected challengers’ First Amendment

claims, interpreting the material-support statute to

require only a showing of “knowledge about the

organization’s connection to terrorism” and finding

the statute constitutional even without requiring a

specific intent to further the illegal ends of a foreign

terrorist organization. Id. at 16–17, 25.

The principle that the First Amendment

generally does not require a malicious motive in order

to regulate speech is eminently sound. After all, a test

focused on the speaker’s subjective intent could lead

to the “bizarre result” where two speakers

communicate the same message at the same time to

the

same

audience,

yet

those

identical

communications “could be protected speech for one

speaker, while leading to criminal penalties for

another.” Wis. Right to Life, Inc., 551 U.S. at 468

(plurality op. of Roberts, C.J.); see also id. at 469

(explaining that objective standards, “focusing on the

substance of the communication rather than

amorphous considerations of intent,” are needed to

“safeguard liberty”).

Historically unprotected categories

of speech can generally be regulated

irrespective of the speaker’ motive

At the heart of this general rule is the notion

that a “speaker’s purpose doesn’t affect the value of

the speech to listeners or to public debate,” nor does it

“affect the harm caused (or not caused) by the speech.”

Eugene Volokh, The Freedom of Speech and Bad

Purposes, 63 UCLA L. Rev. 1366, 1370 (2016). This

reasoning extends with special force to those “historic

and traditional categories” of speech “the prevention

and punishment of which have never been thought to

raise any Constitutional problem.” United States v.

Stevens, 559 U.S. 460, 468–69 (2010) (cleaned up). If

a category of speech is determined to be “so harmful,

valueless, or traditionally unprotected that it ought to

lose First Amendment protection, that should

generally happen even when the speaker has a mental

state below purpose….” Volokh, supra, at 1371; see

also Elonis, 575 U.S. at 766 (Thomas, J., dissenting)

(explaining that this Court “generally ha[s] not

required a heightened mental state under the First

Amendment for historically unprotected categories of

speech”).

It is well settled, for example, that a legislature

may constitutionally prohibit “fighting words”

without proof of a specific intent to provoke a violent

reaction. The definition of unprotected “fighting

words” turns on how the “ordinary citizen” would

react to these “personally abusive epithets”—not how

the speaker intended them to be received. Cohen v.

California, 403 U.S. 15, 20 (1971). As a result, a

person may commit a breach of the peace if they

“make[] statements likely to provoke violence and

disturbance of good order, even though no such

eventuality be intended,” and the punishment of such

statements “as a criminal act would raise no question

under [the Constitution][.]” Cantwell v. Connecticut,

310 U.S. 296, 309–10 (1940); see also Chaplinsky v.

New Hampshire, 315 U.S. 568, 572–573 (1942)

(rejecting a First Amendment challenge to a general-

intent construction of a state “fighting words” statute

that allowed for conviction based on what “men of

common intelligence would understand would be

words likely to cause an average addressee to fight”).

The same is true of laws addressing the

historically unprotected category of obscenity. There,

again, this Court has focused on what defendants

knew or should have known about the speech’s

properties and not on their intention for speaking. In

Hamling v. United States, 418 US 87, 123 (1974), this

Court held that the First Amendment permits a

defendant to be convicted of mailing obscenity based

only on proof they had knowledge of the contents of

the materials they distributed, and that they knew

the character and nature of the materials. An

obscenity defendant therefore need not act with a

specific motive, such as an intent to appeal to the

recipient’s prurient interest. See id. at 120–24.

Liability for the unprotected category of

defamation fits the same mold. For false statements

about a private person on matters of private concern,

this Court’s First Amendment precedent allows for

liability based solely on a speaker’s negligence

concerning the statements’ falsity. See Philadelphia

Newspapers, Inc. v. Hepps, 475 U.S. 767, 770, 773–75

(1986). And even for false statements that involve

public figures or matters of public concern, this

Court’s “actual malice” standard only requires

“knowledge” of a statement's falsity or a “reckless

disregard” for the truth. New York Times Co. v.

Sullivan, 376 U.S. 254, 279–280 (1964). In neither

situation does the First Amendment require that the

speaker have a specific intent to harm a person’s

reputation. See Masson v. New Yorker Magazine, Inc.,

501 U.S. 496, 510 (1991) (“Actual malice under the

New York Times standard should not be confused with

the concept of malice as an evil intent or a motive

arising from spite or ill will.”).

This Court should recognize definitively that no

specific-intent element is necessary for laws that

criminalize stalking and other threats. A contrary

rule—one that constitutionally enshrines a motive-tothreaten element in every threat law—would “make

threats one of the most protected categories of

unprotected speech, thereby sowing tension

throughout our First Amendment doctrine.” Elonis,

575 U.S. at 766 (Thomas, J., dissenting). After all, it

would make little sense to allow the prosecution of a

person for sending obscene material to an

unsuspecting recipient irrespective of whether they

intended to offend that recipient, but forbid the

prosecution of the same person for sending a

threatening message absent evidence that they

intended to terrorize the recipient. There is “no reason

why [this Court] should give threats [such] pride of

place among unprotected speech.” Id. This Court

should therefore “stay away from focusing on the

speaker’s purpose” when considering stalking and

other forms of unprotected threats. Volokh, supra, at

1420. “The content of speech should matter; the

speaker's purpose should not.” Id.

There is no clear historical

predicate for a motive requirement

States

have

maintained

general-intent

criminal statutes prohibiting threats since “the late

18th and early 19th centuries,” including after those

states “amended their constitutions to include speech

protections similar to those in the First Amendment.”

Elonis, 575 U.S. at 760–61 (Thomas, J., dissenting)

(citing examples from Florida, Illinois, Michigan, and

New Jersey). These early threat laws made it a crime

to “knowingly send or deliver any letter or writing . . .

threatening to maim, wound, kill or murder any

person, or to burn his or her [property], though no

money, goods or chattels, or other valuable thing shall

be demanded.” Id. at 761 (citations and quotation

marks omitted). These laws were, in turn, “copies of a

1754 English threat statute subject to only a generalintent requirement.” Id. (citations omitted). The early

English cases interpreting this statute—which would

have been “well known in the legal world of the 19th

century United States”— “consider[ed] only the

import of the letter’s language, not the intent of its

sender.” Id. at 762–63 (citations omitted). Thus,

“there is good reason to believe that States bound by

their own Constitutions to protect freedom of speech

long ago enacted general-intent threat statutes,” and

thus that there is a history and tradition of

criminalizing threats without attention to the

speaker’s motivation. Id. at 763.

These Founding Era examples of general-intent

criminal threat statutes complement the long and

established history of civil protections available

against threats that did not depend on the speaker’s

intent. For example, Blackstone explained that the

remedy of “surety of the peace” was available

“wherever any private man hath just cause to fear

that another will . . . do him a corporal injury.” 4 W.

Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND

253 (1769) (emphasis added); see also New York State

Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111, 2149–

50 (2022) (recognizing the early Founding Era

presence of surety laws). This long history and

tradition provides a clear basis for requiring only

general intent for laws regulating stalking and other

threats.

Petitioner asks this Court to analogize threats

to incitement, which Petitioner says requires an

element of specific intent. Pet. Br. 21–22, 45. This

analogy has many problems. First, it is a poor fit:

unlike incitement, which only involves potential harm

when third party listeners are stirred to action,

threats themselves cause harms (like those caused by

fighting words and defamation) that affect the

immediate listener. Second, the strained analogy is

far less probative than both the identifiable history

and tradition of criminalizing threats without a

specific-intent requirement and the broader principle

that government may regulate speech using generalintent requirements. Finally, it remains debatable

whether Brandenburg v. Ohio, 395 U.S. 444 (1969),

and its progeny truly require specific intent to cause

lawlessness as an element of incitement. See United

States v. White, 670 F.3d 498, 511–12 (4th Cir. 2012)

(“The Brandenburg test only requires that the

speaker use specific words advocating unlawful

conduct” and “does not require that the speaker have

a specific intent to incite unlawful conduct.”),

abrogated on other grounds by United States v. White,

810 F.3d 212, 220 (4th Cir. 2016) (recognizing that the

abrogation of the earlier decision “does not affect our

constitutional rule that a ‘true threat’ is one that a

reasonable recipient familiar with the context would

interpret as a serious expression of an intent to do

harm”).

Threats and stalking are uniquely

harmful even among unprotected

categories of speech

Threats—and especially stalking—provide the

clearest case for the general rule that the “content of

speech should matter; the speaker's purpose should

not.” Volokh, supra, at 1420. Motive is entirely

irrelevant to the First Amendment value of threats,

which is minimal, as well as to the harm caused by

threats, which is substantial.

Stalking, in particular, is often a matter of life

and death. Indeed, stalking is so “significantly

associated with murder and attempted murder” that

it has been referred to as “slow motion homicide.”

Judith M. McFarlane et al., Stalking and Intimate

Partner Femicide, 3 HOMICIDE STUDIES 300, 311–16

(1999); Brieanna Charlebois, 'Homicide in slow

motion': Police urged to tackle stalking in wake of

Coquitlam woman's murder, VANCOUVER SUN, (Jan.

22, 2023).2

More than half of female homicide victims

reported being stalked before they were murdered by

their stalker, and more than two-thirds of female

homicide victims were stalked by their intimate

partner before being killed by them. McFarlane,

supra. “In a study of cases of actual or attempted

domestic violence homicide involving a female victim

who was physically assaulted by her violent partner

in the preceding year, nearly all (90%) of the victims

were also stalked by their assailant.” U.S. Dep’t of

Justice, 2014 Report to Congress Grant Funds Used to

Address Stalking at 3 (Jan. 2017).3

Violence against stalking victims short of

homicide is similarly pervasive. Between one-third

and one-half of stalkers commit physical violence

against victims. See Katrina Baum et al., Bureau of

Justice Statistics, Department of Justice, Stalking

Victimization in the United States (2009); Barry

Rosenfeld, Violence Risk Factors in Stalking and

Obsessional Harassment, 31 CRIM. JUST. & BEHAV. 9,

31 (2004); Frances P. Churcher et al., Risk Factors for

Violence in Stalking Perpetration: A Meta-Analysis, 7

2 https://vancouversun.com/news/crime/bc-police-urged-tackle-

stalking-tracking-tech

3 https://www.justice.gov/ovw/page/file/932736/download

FWU J. OF SOC. SCI. 100, 107 (2013). Research on

stalking demonstrates a strong correlation between

intimate partner stalking and physical violence, as

81% of women who were stalked by a current or

former intimate partner were also physically

assaulted by that partner. Jessica Miles, Straight

Outta SCOTUS: Domestic Violence, True Threats, and

Free Speech, 74 U. MIAMI L. REV. 711, 735 (2020). In

addition to physically harming their victims, research

indicates that approximately 29% of stalkers

vandalize the victim’s property, and 9% of stalkers kill

or threaten to kill the victim’s family pets. U.S. Dep't

of Justice, Stalking in America: Findings from the

National Violence Against Women Survey, at 7 (April

1998).4

Even victims who are not killed or physically

assaulted face a lifetime of fear and uncertainty if

their stalkers are not apprehended. Stalking has no

natural endpoint; victims have no way of knowing

when or whether it will end, or if it will end violently.

Not only is stalking “all too often a lengthy and

intense harassment continuing for months or years,”

Paul E. Mullen & Michele Pathé, Stalking, 29 CRIME

& JUST. 273, 277 (2002), but “stalking behavior often

escalates into violence as time passes and the stalker’s

obsession with the victim grows,” U.S. Dep’t of

Justice, Project to Develop a Model Anti-Stalking Code

for States 49–50 (1993).5 Nearly a quarter of stalking

4 https://www.ojp.gov/pdffiles/169592.pdf

5 https://www.ojp.gov/pdffiles1/Digitization/144477NCJRS.pdf

victims said the stalking behaviors lasted two years or

more. Rachel E. Morgan & Jennifer Truman, Bureau

of Justice Statistics, Stalking Victimization, 2016, at

1 (2021).6 Even if stalkers often “move on” to another

victim after some period of time, victims never know

when and if they will return. Indeed, stalkers exhibit

high rates of recidivism. See Barry Rosenfeld,

Recidivism in Stalking and Obsessional Harassment,

27 LAW & HUM. BEHAV. 251, 257 (2003) (finding a

recidivism rate approaching 50%); Angela W. Eke et

al., Predictors of Recidivism by Stalkers: A Nine-Year

Follow-Up of Police Contacts, 29 BEHAV. SCI. & LAW

271, 276 (2011) (finding a 56% recidivism rate).

Stalking tends to have a devastating and

irreversible impact on victims’ mental and physical

health. “Most stalking involves multiple forms of

harassment, engendering fear and apprehension,

hypervigilance, and mistrust in its victims.” Mullen &

Pathé, supra, at 296. As such, it can alienate victims

from their customary support systems, erode

relationships and careers, and exacerbate social

isolation and despair. Id. Stalking causes “deleterious

effects on the victim's psychological and social

functioning in virtually all cases,” including increased

anxiety, sleep disturbance, significant depression, and

suicidal ruminations. Id. at 278. This “distress and

disturbance leave lasting emotional and psychological

damage” that persists even after the stalking has

ended. Id. “In practice most stalking that attracts the

6 https://bjs.ojp.gov/content/pub/pdf/sv16.pdf

attention of the criminal justice system is of a nature

that would frighten and distress all but the most stoic

of individuals.” Id. at 277.

Members of the judiciary are uniquely

positioned to appreciate the profound impact that

campaigns of fear and intimidation have not only on

their targets, but also their loved ones. There has been

an unprecedented rise in threats to the judiciary in

recent years. See Sarah N. Lynch, U.S. judges faced

over 4,500 threats in 2021 amid rising extremism,

REUTERS (Feb. 5, 2022).7 Chief Justice Roberts, in his

2022 Year-End Report on the Federal Judiciary,

praised Judge Esther Salas for her successful

advocacy of the 2022 Daniel Anderl Judicial Security

and Privacy Act, which protects the privacy of

personal information about judges and their families.

Chief Justice John G. Roberts, Jr., 2022 Year-End

Report on the Federal Judiciary, 3-4 (Dec. 31, 2022).8

The impetus for the law was the tragic murder of

Judge Salas’ son in 2020 by a disgruntled lawyer. Id.

In 2022, Justice Kavanaugh also became the target of

a violent individual: a man angered by anticipated

Supreme Court decisions regarding abortion and guns

was found outside Justice Kavanaugh’s home carrying

zip ties, a knife, a gun, and a hammer. Maria Cramer

and Jesus Jiménez, Armed Man Traveled to Justice

Kavanaugh’s Home to Kill Him, Officials Say, N.Y.

7 https://www.reuters.com/world/us/us-judges-faced-over-4500-

threats-2021-amid-rising-extremism-official-2022-02-14/.

8 https://www.supremecourt.gov/publicinfo/year-end/2022yearendreport.pdf

TIMES (June 9, 2022).9 In his report, the Chief Justice

wrote “… we must support judges by ensuring their

safety. A judicial system cannot and should not live in

fear.” 2022 Year-End Report, supra, at 4.

Given the uptick in threatening behavior

against the judiciary, it is little surprise that 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.” Tierney Sneed

and Devan Cole, Supreme Court asks Congress for

more security money due to threats, CNN (Mar. 9,

2023).10 Measures of this kind will hopefully go some

way to countering the effects of threatening

communications on the judiciary. But thousands of

individuals targeted by stalkers every year are

average citizens who, absent the legal protections of

criminal statutes, are forced to contend on their own

with the effects of stalking.

Stalkers’ motives do not determine

their dangerousness

The fact that stalkers may not subjectively

intend to terrorize their victims does not mean they

pose no danger to them. That is why, in the view of

9 https://www.nytimes.com/2022/06/08/us/brett-kavanaugh-

threat-arrest.html

10https://www.cnn.com/2023/03/09/politics/supreme-courtsecurity-budget-request/index.html.

experts who study stalkers and stalking behavior,

“the stalker’s intent must be regarded as irrelevant to

the legal constructions of the crime of stalking if the

law is to effectively protect victims.” Mullen & Pathé,

supra, at 277. These experts recognize that the

mindset of stalking, which by definition is a course of

conduct that takes place over time and frequently

involves a failure or refusal to accept objective reality,

is too complex to be reduced to simplistic notions of a

single, stable, subjective intent to threaten. “Stalking

…. is part of a spectrum of activities that merge into

normal behaviors, often around such aspirations as

initiating or reestablishing a relationship.” Paul E.

Mullen et al, A Study of Stalkers, 156 AM. J. OF PSYCH.

1244, 1244–45 (1999).

A stalker’s belief that his behavior is

benevolent actually increases the terrifying impact on

victims, as it signals that the stalker feels justified in

his actions. When this attitude is reinforced by law

enforcement and courts, victims are at the mercy of a

stalker’s delusion. “Most stalkers deceive themselves

into believing their activities will further the aims of

either attracting or reconciling with the object of their

unwanted attentions, and even those pursuing

agendas of revenge or vindication rarely admit to

themselves the extent to which they are damaging

their victims.” Mullen & Pathé, supra, at 308. What is

more, stalkers’ motives change over time. A stalker

who begins with seemingly innocuous or benevolent

gestures, such as sending gifts, may at some point

“react with extreme violence to their victim’s repeated

rebuffs.” Id. at 294.

II.

A Motive Requirement For True Threats

Undermines, Rather Than Protects,

Important First Amendment Values

Like other forms of categorically unprotected

speech, stalking and threats are “particularly

valueless.” Hustler Magazine, Inc. v. Falwell, 485 U.S.

46, 52 (1988). Restricting such speech therefore poses

an “inconsequential” risk to free expression.”

Davenport v. Washington Educ. Ass’n, 551 U.S. 177,

188 (2007). In fact, mandating a specific-intent

requirement for all stalking and threat laws would

undermine the broader “values the First Amendment

is meant to protect.” Wis. Right To Life, 551 U.S. at

468 (plurality op. of Roberts, C.J.).

The marketplace of ideas

Not only do stalking and other threats not

contribute to the marketplace of ideas, but they

deplete the marketplace of ideas by placing victims in

reasonable fear for their lives, thereby chilling their

speech. Threats and stalking cause victims to curtail

their activities and withdraw from public life,

resulting in a “net decrease in the amount of available

speech.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,

647 (1994). The chilling effects of targeted threats,

harassment, and other abuse, especially when they

take place online, have been well-documented.

“[T]argeting an individual persistently with

threats . . . can cause severe distress and fear of

physical harm. This online abuse can have a totalizing

and devastating impact upon victims, causing chilling

of their own speech, sharing, and engagement online.”

Jonathon W. Penney, Understanding Chilling Effects,

106 MINN. L. REV. 1451, 1478 (2022) (quotation marks

and footnotes omitted); see also id. at 1511–12

(explaining that “threats of violence and physical

harm are a powerful force for self-censorship, which

trigger deeper psychological states of fear, anxiety,

and severe emotional distress that then in turn

amplify social conformity”).

Stalking can take over every aspect of a victim’s

life. In a significant number of cases, victims are

forced to relocate, sometimes more than once. Mullen

& Pathé, supra, at 296–97. More than half of stalking

victims report changing or withdrawing from their

employment, often in response to the stalker’s

appearance at or around their workplace or threats

the stalker makes to co-workers. Id. Victims also miss

work because of medical appointments or court

appearances related to the stalking. Id.

The chilling effect of stalking and harassment

is not confined to the individual targeted. Stalkers

pull family members, friends, co-workers, and

colleagues of the victim into their orbit as well. Merely

witnessing online harassment leads nearly a third of

bystanders to self-censor. Maeve Duggan, Online

Harassment 2017, PEW RESEARCH CENTER, (July 11,

2017). The disciplinary chilling effect of threats affects

women and girls disproportionately, pushing them

away from careers such as journalism. See Lili Levi,

Racialized, Judaized, Feminized: Identity-Based

Attacks on the Press, 20 FIRST AMEND. L. REV. 147,

165–66 (2022). “Instead of fully participating in

society . . . , women are sacrificing their freedom of

expression for safety and self-preservation.” Jessica

K. Formichella, A Reckless Guessing Game: Online

Threats Against Women in the Aftermath of Elonis v.

United States, 41 SETON HALL LEGIS. J. 117, 135

(2016) (quotation marks and footnotes omitted).

The present case provides an illustrative

example. Petitioner targeted C.W., a local musician

with whom he had become obsessed, by sending

hundreds, if not thousands, of messages, including

messages saying he wanted her to die and insinuating

that he was physically surveilling her. People v.

Counterman, 497 P.3d 1039, 1048 (Colo. App. 2021);

J.A. 128, 429, 432. According to a bandmate:

[C.W.] was too frightened to book shows

because it meant we had to post online

where we would be and at what time . . . .

We did not know what Bill Counterman

looked like—he could be anyone at any

show. [C.W.] became afraid to talk to

people; she was anxious, unhappy, and

constantly checking in with security.

Playing a show was clearly more

stressful than joyful.

J.A. 431.

C.W. tried to ignore the terrifying messages,

but when she discovered that Petitioner had twice

been arrested for threatening women with bodily

harm (including threats to “put your head on a fuckin

sidewalk and bash it in,” and to “rip your throat out

on sight”), she felt she had to contact police. J.A. 433.

C.W. worried, however, about how the process would

allow Petitioner to take over even more of her life:

[O]nce you get an authority involved,

there's a chance that something like this

could happen where you have to spend

many months of your life being

vulnerable to questioning, sitting in a

courtroom just a few feet away from

somebody who's been antagonizing you

for years. And I was—hesitant doesn't

even describe how I was feeling about

telling somebody about this. The fact

that it would then become undeniably

real, and it just makes all of the terror a

little bit more tangible.

J.A. 182.

At sentencing, C.W. explained: “This entire

experience has been a nightmare for me. I did not ask

to be on trial. I did not ask to have to prove that I have

suffered emotional distress. I didn't even ask for these

charges to be filed. But I am asking for the Court to

please provide me with some safety.” J.A. 432. She

ended her plea at sentencing with: “I'm just asking the

Court to protect me.” J.A. 435.

The remedy of counter-speech

This Court’s cases extol the importance of

addressing harmful speech with counter-speech. See,

e.g., United States v. Alvarez, 567 U.S. 709, 727 (2012)

(“The response to the unreasoned is the rational; to

the uninformed, the enlightened; to the straightout

lie, the simple truth.”). But where threats—and

particularly stalking—are concerned, this kind of

engagement through counter-speech offers no remedy.

On the contrary, stalkers are often motivated by the

desire to receive attention from victims who otherwise

have no interest in interacting with them. As a result,

a victim’s attempts to reason with or dissuade a

stalker often only invite more unwanted attention and

increase the victim’s risk of harm. See Mullen &

Pathé, supra, at 294 (explaining that some “stalkers

will react with extreme violence to their victim's

repeated rebuff” and that engagement with a stalker

may “gratify the stalker's wishes to have, and to hold

onto, a relationship and reinforce[] the pursuit”); id.

at 310 (“…. any contact with the perpetrator, however

intermittent, will reinforce the unwanted behavior.”).

Counter-speech cannot provide a remedy for

stalking for another reason. Contrary to the claims of

Petitioner, stalking statutes, including the Colorado

statute under which Petitioner was convicted, do not

regulate “pure speech” but rather a course of conduct.

This conduct can and almost always does include nonspeech acts, including “repeatedly follow[ing],

approach[ing] . . . or plac[ing] under surveillance”

another person. Colo. Rev. Stat. § 18-3-602. There is

no rejoinder to being followed home by a stranger at

night; no reply to having one’s every movement

surreptitiously tracked and recorded by a possessive

ex-partner; and no riposte to the stalker’s unshakable

sense of entitlement to the attention of his victim.

The right to associate, or not

In the similar context of regulating offensive or

indecent material in broadcast media, this Court

observed that an “individual’s right to be left alone

plainly outweighs the First Amendment rights of an

intruder.” FCC v. Pacifica Found., 438 U.S. 726, 748

(1978). The same must be true for the victim of

objectively threatening stalking. What Petitioner and

amici euphemistically refer to as “vulgar,” “offensive,”

“disturbing,” “distasteful,” “discomforting,” and

“abrasive” speech was in fact a six-year campaign by

a man to relentlessly insert himself into a woman’s life

without her consent—a campaign that might never

have ended were it not for his conviction and

imprisonment under Colorado’s stalking statute. The

First Amendment should not exalt or protect the

stalker’s intrusion into the victim’s life, disturbance of

their solitude, interference with their autonomy, and

derogation of their right not to associate or speak,

regardless of the stalker’s motive.

Avoiding chilling valuable speech

Petitioner misguidedly claims that allowing

criminal threat laws to rest on general-intent

requirements will chill otherwise-protected speech.

Not only is the empirical evidence of the chilling effect

of legal regulations extremely thin, but the objective,

context-focused standard for defining true threats

fully addresses his litany of hypotheticals in which

out-of-context statements are mistakenly and

unreasonably construed as threats.

Studies of subjective intent “are unable to

demonstrate a connection between a chosen legal

standard and a reduction of chilling at the level of

nuance required to justify the selection of one intent

requirement over another.” Leslie Kendrick, Speech,

Intent, and the Chilling Effect, 54 WM. & MARY L. REV.

1633, 1675 (2013). “[R]esearchers from a range of

social science fields have systematically tested the

[chilling

effect]

theory’s

assumptions

and

effectiveness, and they are not empirically supported.”

Penney, supra, at 1470. Most people do not make

decisions based on rational considerations or costbenefit analyses, and most “are often not sufficiently

aware of the law or state activities such that any

possible legal harm or sanction could impact their

decision about speaking or acting.” Id.

In any event, the objective true-threat standard

assesses the statements and conduct at issue, not “in

isolation,” but rather “in the context in which they”

occurred. Counterman, 497 P.3d at 1046. As the lower

court explained, this context-focused analysis ensures

that “protected speech remains protected, and that

unprotected speech may be criminalized.” Id. at 1049.

For example, accounting for context can confirm that

an ambiguously threatening statement is in fact

“protected political opinion rather than a true threat.”

Id. (discussing Watts v. United States, 394 U.S. 705

(1969)). And by the same token, context can inform

when statements that are not explicitly threatening

nevertheless “are just as undeserving of protection” as

explicit threats. Id.

The objective standard also avoids chilling

protected speech by relying, not on the varied and

unpredictable subjective sensibilities of particular

speakers or listeners, but rather on whether the

conduct would cause “a reasonable person to be in fear

for the person's safety or the safety of his or her

immediate family or of someone with whom the

person has or has had a continuing relationship.”

Colo. Rev. Stat. § 18-3-602(2)(b). This objective

standard ensures that various forms of nonthreatening expression—including “political speech,

minority religious beliefs, and artistic expression,”

Pet. Br. 4—will enjoy the needed “breathing space to

survive.” NAACP v. Button, 371 U.S. 415, 433 (1963).

Petitioner’s concerns about chilling protected

speech are further dispelled by another aspect of the

stalking statute at issue, which requires a course of

conduct that is made “in connection with” the threat

and that “further[s], advance[s], promote[s], or ha[s] a

continuity of purpose” with the threat. Colo. Rev. Stat.

18-3-602(2)(a).

Similar

course-of-conduct

requirements are found in most stalking statutes, see,

e.g., 18 U.S.C.§ 2261A(2), and ensure that convictions

cannot rest on an isolated misunderstanding.

In contrast, accepting Petitioner’s argument

would mean that victims of stalking have no recourse

through the law to address objective threats to their

safety—no matter how terrorizing, pervasive, or

never-ending—from perpetrators that for whatever

reason do not subjectively perceive their own actions

to be threatening. See Pet. Br. at 42 (describing

objectively threating stalking as merely “offensive

speech” that must be “expected in social interaction

and tolerated without legal recourse”) (citations and

quotation marks omitted). Such a state of affairs

cannot be justified by the hypothetical need to

accommodate the plight of misunderstood stalkers

who simply lack social grace.

The First Amendment as a “safety

valve”

The First Amendment is often regarded as a

“safety valve” that tends to decrease the resort to

violence by frustrated citizens. See Whitney v.

California, 274 U.S. 357, 375 (1927) (Brandeis, J.,

concurring); Thomas Emerson, TOWARD A GENERAL

THEORY OF THE FIRST AMENDMENT 11–15 (1967). But

under-protecting victims of threats and harassment

has the opposite effect.

It is well established that stalking frequently

leads to violence against victims. See infra at 12-14.

But the lack of protection for victims may also

encourage them to take matters into their own hands.

Under well-established principles of self-defense, a

person is entitled to use deadly force if they

reasonably fear imminent and unlawful bodily harm.

See Wayne R. LaFave, SUBSTANTIVE CRIMINAL LAW §

10.4 (3d ed. 2022) (explaining that self-defense is

justified where one “reasonably believes” that bodily

harm is imminent). Stalking often creates exactly this

fear. It would be truly absurd for this Court to adopt

a constitutional rule that would require a higher legal

standard for convicting a stalker than justifiably

killing one, or to leave victims with the choice of either

resigning themselves to lifelong terrorization or

resorting to lethal self-help. By contrast, “there is

nothing

absurd”—and

certainly

nothing

unconstitutional—“about punishing an individual

who, with knowledge of the words he uses and their

ordinary meaning in context, makes a threat.” Elonis,

575 U.S. at 759 (Thomas, J., dissenting).

III.

Accepting Petitioner’s Argument Would

Have Dire Consequences For Victims Of

Stalking, Discrimination, And Other

Forms Of Abuse

A motive requirement will give

stalkers a roadmap for avoiding

prosecution

Perpetrators of stalking and other abuses that

disproportionately target women have increasingly

argued that their actions are not only not criminal,

but constitute First Amendment-protected speech.

See Miles, supra, at 743–44 (“A review of reported

state court civil and criminal cases involving true

threats and domestic violence indicates a surge in the

number of litigants raising First Amendment

arguments in these types of cases in the last twenty

years.”). The petitioner in Elonis v. United States was

one such litigant, and, though the Court declined to

take up his argument that his postings on social

media were therapeutic rap lyrics protected by the

First Amendment, Justice Alito warned that such a

view would “grant a license to anyone who is clever

enough to dress up a real threat in the guise of rap

lyrics, a parody, or something similar.” Elonis, 575

U.S. at 747 (Alito, J., concurring in part and

dissenting in part).

As Justice Alito observed in the same opinion,

“[t]hreats of violence and intimidation are among the

most favored weapons of domestic abusers, and the

rise of social media has only made those tactics more

commonplace.” Id. Social media has also made it

easier for abusers to invoke the First Amendment as

a defense for their actions, allowing communities of

abusers to come together to share litigation strategies.

Miles, supra, at 745. The petitioner in Elonis gained

considerable notoriety and credibility as a selfproclaimed free-speech hero following the Supreme

Court ruling in his interstate threats case, and he

frequently took to social media to espouse his theories

of how he could use the First Amendment to get away

with stalking and “revenge porn.” National Public

Radio, Unprecedented: A Thousand Ways to Kill You

(Dec. 18, 2019).11 Indeed, Elonis was eventually

charged with three counts of federal cyberstalking in

2022 regarding threatening messages and sexually

graphic images he sent to his ex-wife, an ex-girlfriend,

and the prosecuting attorney from his interstate

threats case, and argued the statements were

protected free speech. Press Release, United States

Attorney’s Office, Middle District of Pennsylvania,

Northampton

County

Man

Convicted

Cyberstalking (Aug. 8, 2022);12 Def.’s Mtn. to Dismiss,

United States v. Elonis, No. 5:21-cr-00281, Dkt. # 23

at 8-10 (E.D. Pa. filed Jan 12, 2022). While the judge

and jury disagreed, the verdict was likely cold comfort

to the women he terrorized for years.

11 https://one.npr.org/?sharedMediaId=789202495:789202497.

12 https://www.justice.gov/usao-mdpa/pr/northampton-county-

man-convicted-cyberstalking

In stark contrast to the picture that Petitioner

paints of overzealous stalking prosecutions, the

reality is that stalking remains an under-reported and

under-prosecuted crime. Even as awareness of the

prevalence and impact of stalking is increasing,

reporting, arrest, and conviction rates for stalking

remain low. For example, less than 29% of all stalking

victims reported the victimization to police in 2019.

See Rachel E. Morgan & Jennifer Truman, Bureau of

Justice Statistics, Stalking Victimization, 2019, at 3,

11, 17 (2022).13 One in five victims who have reported

stalking to law enforcement say that police took no

action. U.S. Dep’t of Justice, Office of Violence Against

Women, 2014 Report to Congress, Grant Funds Used

to Address Stalking (2017).14 Investigating and

prosecuting

stalking

requires

voluminous

documentation of repeated incidents and evidence of

their impact on victims. Leana A. Bouffard et al, Still

in the Shadows: The Unresponsiveness of Stalking

Prosecution Rates to Increased Legislative Attention,

73 J. OF CRIM. JUST. 2–3 (Mar.–Apr. 2021) These

complexities “result in low prosecution and

convictions rates, with offenders offered the

opportunity to plead to lesser charges (that often

involve one-time behaviors) or prosecutors dropping

charges entirely.” Id. “Studies show a significantly

lower arrest rates for stalking compared to projected

stalking rates, even when accounting for

13 https://bjs.ojp.gov/content/pub/pdf/sv19.pdf

14 https://www.justice.gov/ovw/page/file/932736/download

underreporting.” Id. This is precisely the phenomenon

C.W. spoke of at Petitioner’s sentencing hearing.

motive

requirement

will

undermine the victim’s ability to

obtain civil protection orders

Petitioner suggests that victims of stalking can

seek restraining orders as an alternative to criminal

prosecution. But if this Court decides in his favor and

adopts the subjective test for true threats in criminal

cases, this would likely also impair victims’ ability to

obtain civil protection orders. Sullivan, 376 U.S. at

277 (“What a State may not constitutionally bring

about by means of a criminal statute is likewise

beyond the reach of its civil law. . . .”).

This is because many states’ civil protection

order laws currently focus on “the objectively

threatening nature of the statement to a reasonable

person, rather than a speaker's subjective intent to

threaten.” Miles, supra, at 743–44. If this Court

decides that either purpose or knowledge is required

to provide a true threat for a criminal conviction, this

would “potentially [ ] undo[ ] years of legislative

progress . . . to increase protections for victims of

domestic violence via civil protection orders.” Id.

Additionally, many states require victims seeking a

civil protection order based on threats or stalking to

prove the crime of threats or stalking. Id. A ruling in

Petitioner’s favor will inevitably serve to encourage

and buttress defendants’ free speech arguments in

civil protection order proceedings. Id.

A motive requirement will have

broader repercussions for victims of

discrimination and other forms of

abuse

Petitioner’s argument both endorses a

subjective intent standard and attacks the objective

standard as unworkable, vague, and chilling. To find

for him on either point risks undermining multiple

areas of the law where the objective characteristics of

the conduct or speech are central.

Harassment and discrimination

under Title VII

The

complexity

determining

what

constitutes criminal stalking in many ways resembles

what

constitutes

legally

actionable

sexual

harassment or discrimination. To determine the

existence of a hostile or abusive work environment for

Title VII purposes, the Court takes a totality of the

circumstances approach, focusing on the objective

character of working conditions and the victim’s

subjective perception. Harris v. Forklift Sys., Inc., 510

U.S. 17, 21–22 (1993). The test is “not, and by its

nature cannot be, a mathematically precise test,” but

instead looks at a multitude of factors, including

frequency of the abusive conduct, its severity, and its

impact on the employees. Id. at 22–23. Multiple Title

VII decisions emphasize that discriminatory intent is

not among the essential factors. See, e.g., Newton v.

Dep’t of Air Force, 85 F.3d 595, 598 (Fed.Cir.1996);

Ellison v. Brady, 924 F.2d 872, 880 (9th Cir.1991). As

one court has explained, “[w]ell-intentioned

compliments by co-workers or supervisors can form

the basis of a sexual harassment cause of action if

a reasonable victim of the same sex as the plaintiff

would consider the comments sufficiently severe or

pervasive to alter a condition of employment and

create an abusive working environment.” Vaughn v.

Pool Offshore Co., 683 F.2d 922, 925 n.3 (5th

Cir.1982).

Whatever

difficulties

attend

the

determination of what constitutes an objectively

hostile, rather than merely offensive, environment,

they are not resolved by recourse to evaluating an

alleged harasser's intent.

The Court’s response to the concern that Title

VII would become a “general civility code” is

instructive here. “The prohibition of harassment on

the basis of sex requires neither asexuality nor

androgyny in the workplace; it forbids only behavior

so objectively offensive as to alter the “conditions” of

the victim's employment.” Harris, 510 U.S. at 21

(emphasis added). The objective totality of the

circumstances test is the appropriate standard for

evaluating the “constellation of surrounding

circumstances, expectations, and relationships which

are not fully captured by a simple recitation of the

words used or the physical acts performed.” Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 82

(1998). “Common sense, and an appropriate

sensitivity to social context, will enable courts and

juries to distinguish between simple teasing or

roughhousing . . . , and conduct which a reasonable

person . . . would find severely hostile or abusive.” Id.

Nonconsensual

laws

pornography

The unauthorized distribution of private,

sexually

explicit imagery, also

known

“nonconsensual pornography” or “revenge porn,” is

now recognized as a crime in in 48 states. Many of

these laws are of fairly recent vintage, and the

elements of the crime vary by jurisdiction. While the

majority of state laws require that the perpetrator act

with the intent to cause harm, see, e.g., Fla. Stat.

§ 784.049, others do not include this element, see, e.g.,

720 Ill. Comp. Stat., ch. 5, § 11-23.5. The view of many

experts and advocacy organizations familiar with the

nature, scope, and impact of this abuse is that the

perpetrator’s motive for disclosing the private

information is irrelevant. Mary Anne Franks,

“Revenge Porn” Reform: A View from the Front Lines,

69 FLA. L. REV. 1251, 1290 (2017). While some

perpetrators, especially those who are former

intimate partners, do act out of a desire to harm the

victim, many others do not. See Asia A. Eaton et

al., 2017 Nationwide Online Study of Nonconsensual

Porn Victimization and Perpetration: A Summary

Report at 19 (June 12, 2017) (finding that 79% had

some other motive than to hurt the victim).15 They are

motivated instead by greed, voyeurism, a desire for

social standing, or other impulses. See, e.g., Franks,

supra, at 1335.

Regardless of the perpetrator’s motive, the

disclosure of such personally sensitive information

can causes life-shattering harm, including severe

psychological trauma, loss of employment, stalking,

and suicide. “[B]anning the distribution of

nonconsensual pornography only when the distributor

has the purpose to distress the subject will leave

untouched a lot of equally harmful nonconsensual

pornography. If the content of speech is indeed

harmful and valueless enough to be banned, it should

be banned without regard to the speaker's purpose.”

Volokh, supra, at 1421.

All of the laws that have been challenged on

First Amendment grounds to date have been upheld,

including those that do not require a subjective intent

to harm the victim. Victoria Killion, Cong. Rsch. Serv.,

LSB10723, Federal Civil Action for Disclosure of

Intimate Images: Free Speech Considerations 2 (2022).

The Illinois Supreme Court, in addressing the

criticism of that state’s law for not including intent to

cause harm as an element of the offense, correctly

noted that:

15 https://www.cybercivilrights.org/wp-

content/uploads/2017/06/CCRI-2017-Research-Report.pdf

the motive underlying an intentional and

unauthorized dissemination of a private

sexual image has no bearing on the

resulting harm suffered by the victim. A

victim

whose

image

has

been

disseminated without consent suffers the

same privacy violation and negative

consequences of exposure, regardless of

the disseminator’s objective. Therefore,

the question of the disseminator’s motive

or purpose is divorced from the

legislative goal of protecting the privacy

of Illinois citizens. The explicit inclusion

of an illicit motive or malicious purpose

would not advance the substantial

governmental interest of protecting

individual privacy rights, nor would it

significantly restrict its reach.

People v. Austin, 155 N.E.3d 439, 470 (Ill. 2019), cert

denied, 141 S.Ct. 233 (2020).

A ruling in Petitioner’s favor would jeopardize

the progress that has recently been made to deter and

punish emerging and evolving abuses facilitated by

technology such as nonconsensual pornography.

CONCLUSION

For the above reasons, the judgment below

should be affirmed.

Respectfully submitted,

Jeffrey A. Mandell*

Erin K. Deeley

Carly Gerads

STAFFORD ROSENBAUM LLP

222 West Washington Ave.

#900

P.O. Box 1784

Madison, WI 53701

608.256.0226

jmandell@staffordlaw.com

*Counsel of Record

March 31, 2023.

Mary Anne FrankS

1311 Miller Drive

Coral Gables, FL

33146

786.860.2317

Counsel for Amici

Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.