...and this one was not reported on by most of the media. In fact, the decision was celebrated by many civil liberties groups though its consequences could be catastrophic, especially to women.

https://slate.com/news-and-politics/2023/07/supreme-court-legalized-stalking-counterman-colorado.html

Stalking is now considered a form of free speech.

Yeah, that gem came down last week.

I had to put aluminium foil on my windows, change my route to and from work, weird notes and letters, drunk jerks knocking on my front door...ugh


And the cops wouldn't do anything.

I wonder if a website will be successfully sued for banning the 'stalking,' via now-protected speech, of one participant by another?

One of my all-time favorite movies, Grosse Point Blank, had a plot based on assassins-for-hire.  I can see cut-throat competition driving down the price of getting-rid-of-insane stalkers via hiring stalkers to stalk the stalkers.

Insane.


I wish the USSC majority would retire Immediately

Insane. I wish the USSC majority would retire Immediately.

COMMENT: Note that all three of the liberal, women, justices were with the majority opinion, one writing the majority opinion, and a second writing a concurring opinion. So, you cannot blame this on the conservatives. The two dissenters were Thomas and Coney-Barrett.

A question I had when that decision was first announced concerns family law and domestic violence law. In both of those fields it is normal for courts to prohibit stalking, harassment, and communications with the other party either directly or through third parties.

Are such restrictions still constitutionally permissible? If not, what is going to happen to the weaker and/or more scrupulous parties to family and DV actions--meaning, disproportionately, poor women or those who are so swamped with childcare responsibilities that they have no time to earn their own money or to fend off attempts to ruin their reputations?

I'm gonna go out on a limb and hope that if one spouse has been found guilty of beating the crap out of the other, a judge would feel justified in supporting the aggrieved spouse's request for a restraining order.

But if the complainant spouse can only tell the judge about the other spouse's 'words,' then probably not.

But would the appellate courts?

And can't words be used to destroy lives? If some mother is out there trying to get work to support her kids and her ex-husband is spreading lies about her, what is she to do?

I'll bet that if in any state the standard criminal protective orders and domestic violence restraining orders have provisions that are now in question.

In CA, I believe the vast majority of requests for Restraining Orders are in pro per.  I've read quite a number of them (in the course of tracking people down), and of those I read, at least half depended on abusive vocal exchanges and claimed threats.

It's likely that the word will get out that the petitioners will now need to detail "actions" since abusive verbiage is now protected speech.

I have no knowledge of a violation of a Restraining Order ever being appealed.  But I was only privy to cases involving a very low economic segment of the mean streets of SoCal.

Okay, Jesus. I looked it up for your state and here's the language of the standard domestic violence restraining order in California:

. . .
11. Order to not abuse
Defendant must not harass, . . . follow, stalk, , . . . disturb the peace of, . . .annoy by phone or other electronic means . . .

• “Disturb the peace of” means to destroy someone's mental or emotional calm. This can be done directly or indirectly, such
as through someone else [and] can also be done in any way, such as by phone, over text, or online. . .

I am not sure, but I suspect that under the Counterman decision much of this is no longer constitutional. In particular, "harassing," "stalking," "disturbing the peace of," and "annoy[ing] by phone or electronic means" seem now to be legal because Counterman says electronic and personal harassment and stalking, even implicitly threatening, are now constitutionally protected speech.

Keep in mind that this restraining order is, among other things, an "ORDER PENDING TRIAL (Pen. Code, § 136.2)." The question this brings to mind is whether such restraints can be imposed by a judge when there hasn't even been a trial yet.

I'm pretty sure this is a disaster for state authorities in CA and elsewhere. On the one hand they must revise their standard orders and, on the other, it becomes much more difficult to protect victims.

Do you disagree?

www.courts.ca.gov/documents/cr160.pdf



Edited 1 time(s). Last edit at 07/10/2023 11:56PM by Lot's Wife.

    All I can do is report on what I know and then try to theorize how things may work out.

    Typically, a woman shows up at the courthouse to ask for a TRO, a Temporary Restraining Order. She fills out the request for the TRO, detailing the activity of (usually) a spouse or boyfriend whom she believes is a danger to her.  If it includes physicality, SCOTUS's recent decision is mute.

    But if her request is based on "free & protected" speech, then the request seemingly CANNOT be granted.

    The purpose of the TRO is "protection."  Generally speaking, the petitioners were aware that once the TRO was granted, they could file it with their local police so that if/when the bad guy came onto the property or within (usually) 100 feet of her, she could call the cops and they'd arrest him for violating the TRO.

    At the same time, the TRO is granted, a clock starts to run; she has to serve the TRO on him, and they are both to attend the next hearing for the PRO, Permanent Restraining Order.  When the TRO is served on him, so is a notice of the PRO hearing.

    When she shows up for the PRO hearing, she has to have proof of service, and then she can testify and offer witness testimony regarding the need to make the TRO permanent.

    Will judges start telling TRO applicants, "If he hasn't touched you, there's nothing I can do, no matter how vile his threats, because SCOTUS has determined that it is protected speech; next case, please..."?

Again, I don’t know this stuff and am only guessing. But if a judge approves an order in violation of a supreme court decision, she can be appealed and lose.

My hunch is that judges are going to be screaming at prosecutors and states attorneys general to rewrite those orders immediately. The state bars probably will too, since they can’t risk giving bad advice to their clients.

Restraining orders aren't worth the paper they are printed on. When I left my first husband, I had him served at work with a restraining order. Since he was fairly certain that my best friend from work would have my new phone number (she did) he deluged her with calls - like every ten minutes or so - until she called me in tears, begging me to give him my new number. We didn't have caller ID back in those days. Nor did we have the means to block calls from a certain number. We didn't have cell phones in those days, either.

The only way to stop his malicious constant calls would have been to shoot him, and unfortunately, Louisiana still has the death penalty.

*Repositioned



Edited 1 time(s). Last edit at 07/10/2023 11:53PM by Lot's Wife.

I hear repositioning yourself often helps prevent hemorrhoids.

Thank you! I was just going to ask.

And yes, I meant to use the word “ask.”

If the SCOTUS judges were stalked as thoroughly and as relentlessly as that poor woman was stalked, I doubt they would have responded in the same manner.

IMO the misogyny of this court is unbelievable.

Yup.

Here's the decision:

https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf

If you look at how the justices went, it was not necessarily how you think. Justice Barrett dissented.

It looks like the posts and threats were entirely on Facebook --

"From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged violent harm befalling her."

It seems to me that the major responsibility for this falls on FB. It's similar to the scammers that endlessly troll for victims there. I assume that she had a public account for her musical career. I'm not sure if one can disable comments on public FB pages like you can with Instagram. To me, the violent posts should have been actionable by the local police.

I think a lot of celebrities have similar issues.



Edited 2 time(s). Last edit at 07/11/2023 07:22AM by summer.

One thing about this, as well as some other recent Supreme Court decisions, is that the Court, instead of writing a narrowly-focused decision that could (mostly) leave the status quo intact, is opting to write some very broad-brushed decisions that have had, and will continue to have, some very far-reaching and, as noted in the subject line, potentially disastrous consequences, particularly for the vulnerable.

Edit to add: Summer's addition of which conservative Justice voted against it makes this decision very clear; it was the five men against the four women. In other words, this ruling is a clear-cut case of chauvinist male dominance.



Edited 1 time(s). Last edit at 07/11/2023 11:52AM by blindguy.

One thing about this, as well as some other recent Supreme Court decisions, is that the Court, instead of writing a narrowly-focused decision that could (mostly) leave the status quo intact, is opting to write some very broad-brushed decisions that have had, and will continue to have, some very far-reaching and, as noted in the subject line, potentially disastrous consequences, particularly for the vulnerable.

COMMENT: No. The status quo was a First Amendment problem where the established exception to the First Amendment was too narrow. The justices (all of them) sought to remedy that by establishing a standard that allowed an expanded exception. There will be no disastrous consequences. Victims of stalking--especially women-- will benefit from this ruling.
___________________________________________

Edit to add: Summer's addition of which conservative Justice voted against it makes this decision very clear; it was the five men against the four women. In other words, this ruling is a clear-cut case of chauvinist male dominance.

COMMENT: No. It was a 6-2 decision. The three liberal women were with the majority, and only one woman (Coney-Barrett) was with the dissent. But in any event, the issue was how to address stalking speech in the context of the First Amendment, and all justices held opinions that made prosecution easier, rather than harder within the context of First Amendment precedent.

*Zap



Edited 1 time(s). Last edit at 07/11/2023 05:10PM by Lot's Wife.

> COMMENT: No. The status quo was a First Amendment
> problem where the established exception to the
> First Amendment was too narrow.


That is 180 degrees wrong. The Majority decided the exception allowing prosecution was too broad, not too narrow.


----------------
> The justices (all
> of them) sought to remedy that by establishing a
> standard that allowed an expanded exception.

Nope. The Majority added a second standard that must be met by plaintiffs. Their goal and their intent was to narrow the availability of remedies against stalking.


----------------
> There will be no disastrous consequences. Victims
> of stalking--especially women-- will benefit from
> this ruling.

Nope. Since victims must now meet a second additional standard, it becomes more difficult to seek legal protection.


-------------------
But
> in any event, the issue was how to address
> stalking speech in the context of the First
> Amendment, and all justices held opinions that
> made prosecution easier, rather than harder within
> the context of First Amendment precedent.

Nonsense. The dissenting judges wanted to keep the previous, looser standard in place. The Majority decision imposed another legal burden to victims. The point of the majority decision was to make prosecution more difficult.

This isn't hard stuff, Henry.

Next they'll say phone scammers are a form of free speech.

It sounds like someone writing stuff should be subject to civil legal action in most cases where they are not engaging in violence. I know that the Nazis, Fascists, and other extremists will say that their opinions on Speech are what matters and they'll ignore the need for setting a High Bar being established on what sort of actions we should go around locking people up over.

I'm not defending unwanted harassment, stalking, or anything like that. We should definitely have strong options for civil action where those doing so have to be held financially liable for the impact they have on the careers and other aspects of the lives of others they are harming. But this rush to call out the gestapo or Danites and lock up someone unwanted seems ripe for abuse. Before the government has to spend more money on guards, ammo, bars, concrete, barbed wire fences, security dogs, and prisons/jails we should be looking for civil penalties being pursued.

Haha. You think civil law is a remedy for stalking? You think the average person can invest years of time and hundreds of thousands of dollars on a contingency basis and will be safe without restraining orders in the interim?

How very droll you are!

What is needed is to make it easier for them to go into Court and get a Temporary Civil Order, enforce there being no physical presence, and enforce making it easy to escalate into criminal prosecution if they keep bothering the person once they've had a chance to have due process. They shouldn't have to spend any money on attorneys if the person makes physical contact.

The USA has averaged 7 million adults in the correctional population at any time for the past generation. In Germany, a country with a quarter of the population, the number imprisoned is less than 1%. They learned their lessons from the Gestapo, SS, and Nazi days. America hasn't yet learned its lessons.

And then there's this principle called Free Speech that's in the 1st Amendment of the Constitution. If this hadn't been ratified then the Union would've dissolved in the early 1790's because of the promises made to Massachusetts, Virginia, New York, and others. Two States, North Carolina and Rhode Island, weren't part of the original Congress that swore in George Washington as 1st President under the Constitution because of their concern that an acceptable Bill of Rights must pass.

Ever since then all government officials have taken oaths to uphold and defend the Constitution. If they don't like this Free Speech law then they should try to get an Amendment ratified to overturn it just as was done with Prohibition. In the meantime it's the law.

Thanks for the response.


-------------
> What is needed is to make it easier for them to go
> into Court and get a Temporary Civil Order,
> enforce there being no physical presence, and
> enforce making it easy to escalate into criminal
> prosecution if they keep bothering the person once
> they've had a chance to have due process. They
> shouldn't have to spend any money on attorneys if
> the person makes physical contact.

I see a few problems with that. First, Emergency Restraining Orders are easy to get ex parte basis but within a couple of weeks you have to go to court for a hearing on whether to escalate one of those into a Temporary Restraining Order (TRO) that will last for a few months or maybe a year. Then it must go to a full hearing to decide if it should become a regular TRO lasting, depending on the state, one or several years.

But every single one of those steps requires an attorney. An exceptionally intelligent person with a good understanding of law could do the first step or two, but most of the people who really need protection also really need an attorney and hence money. That's just the way the system works and, sadly, it is not going to change.

Also, restraining orders often do not work. It can be very difficult to get the cops to enforce them and often courts are reluctant to do much better. That's not going to change either.


---------------
> The USA has averaged 7 million adults in the
> correctional population at any time for the past
> generation. In Germany, a country with a quarter
> of the population, the number imprisoned is less
> than 1%. They learned their lessons from the
> Gestapo, SS, and Nazi days. America hasn't yet
> learned its lessons.

It is indeed a disaster. I don't know what the relevance is here, though. Are you suggesting that restraining orders should be granted less frequently? That violations should not result in jail time?

My view is that the primary driver of prison expansion is drug sentences. That's where the changes are most urgent and would have the biggest impact.


-----------------
> Ever since then all government officials have
> taken oaths to uphold and defend the Constitution.
> If they don't like this Free Speech law then they
> should try to get an Amendment ratified to
> overturn it just as was done with Prohibition. In
> the meantime it's the law.

The problem is that the law can change according to the whims of the SC. What was the standard for defamation suits against public figures a month ago is not the standard now. What was the requirement for a stalking conviction last week is not the requirement today. What the Fourteenth Amendment meant a year ago is not what it means now. So there's no guarantee that an amendment would have the effect its sponsors think it would.

When you say "Free Speech law," you are describing a moving target. And that might not change if a new amendment were added to the constitution.

I do worry about the interpretation the SC has just enunciated for restraining orders and stalking prosecutions. But I'm not sure my fears are justified, for the Counterman decision hinted that facts in the case might be enough to meet the recklessless standard if only the prosecution had used them to support a scienter requirement.

The holding states that "The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness."

That suggests that the court does not intend to make stalking cases significantly more difficult to prove. They obviously think the "recklessness" standard is not very "demanding." Let's hope that interpretation (of the SC's interpretation) is right.

So, a person files an ex-parte temporary order, they go to Court, they face an opponent with a powerful attorney, and they lose in Court. In such a Case the Judge should at least warn the attorney & opponent to stay away from the petitioner and never write them.

Next, the opponent is back at it again and another ex-parte temporary order is filed. A notice is sent to both the opponent and the powerful attorney to respond within 10 days with a warning of non-contact. In most such cases the powerful attorney will try to contact the opponent to have a real talk about the way forward. If the opponent isn't willing to behave then the attorney knows they could be in hot water & they might motion the Court to allow themselves to withdraw from the Case. After the response period expires (or response is made by opponent and/or attorney) then the Judge can make a temporary order.

The Petitioner still hasn't spent a dime on an Attorney and they now have a pretty good paper trail. Now another hearing is held. Once again the Petitioner doesn't have an Attorney and the Opponent has a powerful Attorney. A good Judge would expect the Opponent's attorney to have a strong stipulation agreement ready that's strong with some very specific consequences for breach of contract by the Opponent if they stalk the Petitioner. Without that the Judge is just going to make their own Order or go with whatever the Petitioner proposes. And then the Judge will request that the Petitioner agree to this & then it'll be a civil order. It should definitely include an order where some amount for attorney fees must be awarded up front.

Once again the Opponent is at it again. The Petitioner files an ex-parte order to show cause to get awarded on damages. And this is where the community resources should make it easy for them to be able to fill-in on this petition what's needed to get initial amount for attorney fees paid up front, ask for an additional amount via temporary order, and other temporary orders. And then the hearing can be held with a bench warrant ordered on the Opponent if they don't show up or if they lose at the initial hearing & still haven't paid the temporary orders on attorney fees. In such a case a social worker should be assigned to assist the Petitioner start-to-finish and ensure that better paper trail is made if it's still needed.

Still not a penny spent on attorneys by the Petitioner. And now the opponent is in really hot water if they don't stop writing, calling, etc. to the Petitioner. And yes they could and should face criminal charges. It's no longer Petitioner vs. Opponent. It's Petitioner + Social Worker + Opponent's Attorney + Judge + rest of Court + Big Paper Trail vs. Opponent. This is of course assuming that the Petitioner is being honest and reasonable. If they aren't then the Opponent's paper trail ought to demonstrate this too. It really depends on the details.

In most cases I think it would take just 1x in front of a Judge for an Opponent to drop it. And even in the cases where they don't drop it then the majority of them would drop it after their lawyer had a talk with them.

I think where the problem is in communities where such social worker support just isn't there. It'll be a lot cheaper to have this proper support system than to build all those jails.

Anyone who thinks this problem is going to be solved by a huge federal bureaucracy in Washington DC has rocks in their head. The US federal government has been running deficits of over 1 trillion per annum for many years now. The total debt interest is going up by over 1 trillion per annum so we can expect deficits to run over 2 trillion per annum. Even if the government could afford to keep paying for everything it's paying the Medicare and Social Security trust funds will still go broke within a decade & it'll take another 1 trillion per year or more to shore those up. The total gross wages of all Americans is about 9 trillion per annum. So, this hole of 3 trillion per annum means that the USA is facing a very serious day of reckoning. Anyone here remember the changes to your finances when you went from paying 10% of your gross income for Tithing to no longer paying this? Yes, it meant that you no longer got fire insurance, a card like a Costco membership to buy sexy underwear, and no more free movie pass to watch the highest grossing film of all time at the temples. But, instead you got more money in your pocket.

Now imagine if you had to start paying triple tithing to the IRS because the US federal government has a big hole in its finances. That's what the USA is facing and when that happens you can be sure that the federal bureaucracies designed to solve problems like this aren't going to have the resources to accomplish their mission. And even then this is a mission that really ought to not be just limited to some certain geographical region like the USA. It really ought to be global. Some people are delusional in thinking that the geographical lines for America have some sort of magic. They don't. They just identify a territory which has this big huge collection of bureaucracies headquartered in DC that have a lot of power & this big huge liability that's fast approaching 4 years of wages for Americans. A new worker in America with 40 years of their career ahead of them can think of themselves as needing to be full tithe payers to Uncle Sam for the debts of the past.


That's why a problem like this has to be solved in communities. Yes we could suppose that the UN Security Council (with big oil countries like Russia, China, and Saudi Arabia having plenty to spend) will be generous on this problem. But they might balk at helping out and there could be plenty of delays with bureaucratic malaise. The way to real action is for local communities to start solving this problem and effective solutions will go viral.

Now if there is physical contact then we're talking about Assault, not Stalking, and it's a fast track to criminal prosecution.

My points above only is meant to involve situations where an Opponent sends something in writing, sends objects, or tries to talk with the Petitioner; but does not go near the Petitioner in any way physically. And even in such situations I think it can reach the level where they should be criminally prosecuted. However, that approach should NOT be tried IMO until a Judge has given them fair chance for due process and all reasonable attempts should be made by the system to keep the matter Civil.

It's awful to see how America is getting a reputation in the world for being a Fascist Banana Republic State where political prisoners are getting jailed and politics and public service has become a crime sport. What's needed is more civility.

This is a good post, but what you are missing is that stalking and assault are governed by exactly the same due process requirements. That's already the law.

I seem to be the obvious person to stalk??? I've had four stalkers in my life. What my "husband" and boyfriend didn't seem to understand, and other male friends, is that if the males hang around, the stalking either improves or stops. I had a stalker at Thiokol and at the IRS when I was about 18, at the job before this (transcription--the janitor of the building), and another from Thiokol who would give me those calls--what are they? I have word finding difficulties. I'll remember after I finish this post and have signed out. Middle of night calls.

Usually the ones I knew when I was in my 20s, all they had to do is find out who my dad was or see him. My dad was a scary man except for those who knew him well. He was 6 4 and they called him kong at the high school he taught at.

The last stalker, the janitor, finally messed up! My "husband" was grounds supervisor at the hospital for 40 years. The janitor put in a bid on deicing the parking lots and came to give it to my "husband" while I was actually there at the hospital in his office. My "husband" knew immediately who it was and my dear little friend also saw all my husband's workers. Most are ex-cons. That is one good thing about my "ex"--there are many more--is he would hire guys how couldn't get jobs because of a past history. They all worked out.

I do feel this change by the Supreme Court is a bad move.

cl2, my mother was stalked and harassed when she was in her late 70s!

The stalker lived in our apartment complex (I was living with her at the time.) He was obviously mentally ill, but that did not excuse his behavior. He would stand outside his apartment, stare at any female who lived there whenever she entered or exited the building, and make inappropriate comments. He did it to me as well, but I drew the line when my elderly mother told me that she felt constrained to use the back stairwell.

The management company told me that I had to write a letter to them detailing my complaints. I got other neighbors to do the same. Problem solved -- the man was evicted. But *no woman* should ever have to put up with that kind of behavior, especially to the point where she feels her personal safety is threatened.

summer Wrote:
-------------------------------------------------------
> He was obviously
> mentally ill, but that did not excuse his
> behavior.

If the illness prevented him from forming the requisite scienter--intent, knowledge, or reckless disregard of the fact that his actions would put your mother in fear of harm--his illness would under the new precedent absolutely "excuse his behavior."

At least as far as the courts are concerned. I don't know if the apartment management could shut him down. Perhaps it could.

This is absolutely wrong. Read the opinion!

What this case addresses are the applicable exceptions to the First Amendment guaranty of free speech in the context of stalking speech acts. One such obvious exception is when a person engages in "true threats," as in when bodily harm, or other harm is expressly threatened. In this case, the appellant perpetrator was convicted of a crime for repeatedly emailing and harassing a woman entertainer. However, there were no express threats in his conduct, and as such his First Amendment free speech right remained applicable, absent some standard as to when speech might be deemed threatening, even if not explicitly so. In this case, the perpetrator argued that they are only threatening if he, the perpetrator subjectively intended his speech as such, citing current Constitutional law.

At this point, you need to understand what in law is differentiated as an "objective standard" or "subjective standard." As applied to the present context, an objective standard asks whether "a reasonable person" would feel threatened by the speech. (The "reasonable person" standard in law is referred to as an objective standard in several legal contexts.) On the other hand, a subjective standard would address whether the *perpetrator* knew or should know that his speech acts would be deemed threatening.

The majority opinion opted for the subjective standard, but added an important cavate, namely that a showing that the perpetrator "consciously disregarded a substantial risk that his communications would be viewed as threatening violence." This means (roughly) that when a perpetrator engages in speech that he should know might be taken as threatening, he loses his First Amendment rights. The dissenting opinion opted for the objective standard, that is, what a reasonable victim might deem as threatening, without regard to the mental state of the perpetrator.

Now, which of these approaches best protects a victim of stalking remains an open question. Typically, it would seem to be an easy proof that a perpetrator engaging in stalking-related speech would know, or should know, that his behavior would be deemed threatening. (The majority view) However, it might not be the case that a hypothetical "reasonable person" would view such speech as threatening. (The Minority view)

The above is a very rough analysis. Before casting stones at the justices, however, one should read the opinion. (Have I said that before?)

In any event, it is certainly NOT the case that either the majority or minority views found stalking speech acceptable behavior, or that such speech was immune from either the "true threat" exception to First Amendment protection, or criminal prosecution. Any male stalker engaging in such speech towards a woman, would presumably know that such speech was in reckless disregard that the woman might take such acts as threatening. In this sense, the opinion helps the stalking victim, rather than undermining her.

Sorry to spoil the SC conspiracy theory party. This thread--and virtually all the others recently addressing the SC decisions--demonstrate just how quick smart (and not so smart) people are to find malicious motives, or conspiracies, underlying the SC decisions. Here, the malicious conspirators were apparently the liberals, who together could have flipped it the other way. How painful is that. :)

Maybe justice Thomas spiked their tea with hallucinogens, causing them to lose all logic and perspective, and then he and Coney-Barrett decided to dissent just to throw everyone off. Damn those conservatives!

Have you got a better explanation?

Yes, I do have a better explanation. In fact, no one is claiming this case was "a conspiracy." You're the only person who has used that term in this thread.

You've offered another red herring.



Edited 2 time(s). Last edit at 07/11/2023 05:20PM by Lot's Wife.

"It is okay to yell, "FIRE!!!" in a
crowded theatre if you are able
to convince a judge or jury that
you didn't mean it, much less
intend anyone to be injured."
    --The Right Honorable Judic West



Maybe it's gonna be like porn; people may not have a good description of porn, but they know it when they see it.  So, too, they'll know what 'speech' should be protected and which shouldn't.

Pleas of, "Your honor, I was just messin' with her...  I wouldn't harm a hair on her head!  Ya gotz to believe me!!"

Maybe the standard will vary according to the victim...?  

Maybe it'll be protected speech if the victim is 19 versus 15?  A stripper versus a nun?  Of Hispanic origin versus of Danish origin?  Black versus White...

Maybe it's going to be like California shoplifting: you're gonna be fine until Walmart videos you reaching $3,000 in shoplifted merchandise.  That's when the hammer falls...

Maybe the majority were giggling when they voted?

> This is absolutely wrong.

That's Henry's colossal confidence again. But watch him try to backtrack from his previous post, perhaps because in the interim he read the opinion and realized he must now adjust his opinion.

Above, he said "Victims of stalking--especially women--will benefit from this ruling." So all those victims advocacy groups who are complaining right now are acting irrationally. Let's see why everyone else disagrees with Henry.

The following is his correct summation of the issue.

> In
> this case, the perpetrator argued that [his words] are
> only threatening if he, the perpetrator
> subjectively intended his speech as such, citing
> current Constitutional law.

Henry omits, however, what the pre-existing law was. Under that regime, the only thing that mattered was that the victim reasonable felt threatened. Now--and this is the point Henry either failed to perceive or is intentionally concealing--we ADDITIONALLY need to prove what was in the perpetrator's mind. Since the victim must now meet this second burden, it has become more difficult to obtain judicial protection.

Watch how he describes both the old and the new standards without acknowledging that the latter is an additional new requirement.

> At this point, you need to understand what in law
> is differentiated as an "objective standard" or
> "subjective standard." As applied to the present
> context, an objective standard asks whether "a
> reasonable person" would feel threatened by the
> speech. (The "reasonable person" standard in law
> is referred to as an objective standard in several
> legal contexts.) On the other hand, a subjective
> standard would address whether the *perpetrator*
> knew or should know that his speech acts would be
> deemed threatening.

See? Henry, why don't you admit that second "subjective" standard has been added to the original "objective standard" and the victim accordingly faces a higher burden?

Now watch how Henry obliviously and incorrectly argues that the Majority decision actually helps victims.

> The majority opinion opted for the subjective
> standard, but added an important cavate, namely
> that a showing that the perpetrator "consciously
> disregarded a substantial risk that his
> communications would be viewed as threatening
> violence." This means (roughly) that when a
> perpetrator engages in speech that he should know
> might be taken as threatening, he loses his First
> Amendment rights.

You see? Henry is telling us that the new standard is good because the scienter it requires is not the highest level, which is "intent" to harm the victim; or the second-highest, which is "knowledge" that his actions would harm the victim; but the third-highest, which is "recklessness," meaning a reckless disregard for the effects of the perpetrator's actions on the victim.

Henry is thus saying "that victims of stalking" are better protected because the new hoop they must jump through is not as challenging as it might have been. But that does not obviate the fact that there is an additional new requirement that the victim must satisfy.

Indeed, the dual standards are what this case was all about.

> The dissenting opinion opted for
> the objective standard, that is, what a reasonable
> victim might deem as threatening, without regard
> to the mental state of the perpetrator.

See? The dissent is saying that the old law should stay in place; there should not be a second standard. As was previously the law, all that should matter is whether the victim reasonably feels threatened. That's why the Minority objected to the new standard: it makes it harder to get protection.

You know which cases now become impossible to enforce? Well, one category would be where the stalker is mentally impaired and can't formulate the "reckless" scienter necessary under the new standards to commit a crime. That schizophrenic guy in front of your Brownstone? Since his thinking is profoundly muddled and he can't meet the new reckless standard, he can threaten you without breaking a law.

Another category would be stalkers for whose scienter--intent/knowledge/recklessness--there is little or no evidence. Intent may be there in such a case, but if the victim cannot prove what it was, s/he can not get court protection. That's why victims advocacy groups are so worried.


Watch Henry try to minimize this new danger:

> Now, which of these approaches best protects a
> victim of stalking remains an open question.
> Typically, it would seem to be an easy proof that
> a perpetrator engaging in stalking-related speech
> would know, or should know, that his behavior
> would be deemed threatening. (The majority view)

[An interposition. Henry mistakenly thinks the required scienter is "intent" or "knowledge." It is the even lower "recklessness" standard.]

And watch him go off chasing the wrong standard.

> . . . it might not be the case that a
> hypothetical "reasonable person" would view such
> speech as threatening. (The Minority view)

That's not it at all. The law has always said the victim must prove she reasonably felt threatened. Nothing in that regard has changed. In Coiunterman the Minority said the standard should remain what it always was. What the case was about was whether there should be a second standard, a standard for what the perpetrator knew and felt. It was that second standard to which the Minority objected.

And watch how, here, as Henry tries to hide the fact that the second standard has been added to the victim's burdens.

> Any male stalker engaging
> in such speech towards a woman, would presumably
> know that such speech was in reckless disregard
> that the woman might take such acts as
> threatening. In this sense, the opinion helps the
> stalking victim, rather than undermining her.

It does not help her. For previously the scienter of the perpetrator was not an issue at all. Now it is. Now the victim must get into the head of the perpetrator and prove what he thought. That does not help the victim of stalking. It makes it harder for her to prevail because now it is incumbent on her to prove what perpetrator's motivations were.



Edited 1 time(s). Last edit at 07/11/2023 04:49PM by Lot's Wife.

What about victims of false accusations of stalking? Doesn't the ruling advance their rights? Victims are a protected class with very low due diligence requirements. Maybe SCOTUS is raising the bar on reasonableness.

This doesn't have anything to do with false accusations, What it did, Bradley, was establish a new standard for when you already have evidence and have proved the acts of stalking.

It used to be that if you proved stalking--the victim had a reasonable fear of violence based on adequate evidence--that was enough. Now you need all of that PLUS evidence sufficient to prove the perpetrator's mental state as well.

In summer's example above, for instance, the stalker was apparently mentally compromised. With the new precedent in place, summer's mother would not just need to prove that the behavior occurred and that she had a reasonable fear of violence but also that the stalker had the requisite scienter, meaning the requisite intent. If he was unable to form that intent due to mental handicap, then he cannot be punished for threatening the victim.

One of the worms in the can that the Kangaroos opened with this decision is whether summer's mother could even obtain a restraining order against the perpetrator. Because if his acts are not criminal, you shouldn't be able to shut him up.

...unless you're like Ted Kozinski (pardon the spelling) and you leave papers all over the place explaining what you're going to do and why. As I explained to Mr. Bemis a few months back on one of my occasional blindness threads, legally, it is the actions that should matter and not the intent, because human beings are not mindreaders and are therefore unable to decipher that. So while there are areas where I do agree with Mr. Bemis, I can safely assure all that support for the winning position in this case is not one of them.

> Any male stalker engaging
> in such speech towards a woman, would presumably
> know that such speech was in reckless disregard
> that the woman might take such acts as
> threatening. In this sense, the opinion helps the
> stalking victim, rather than undermining her.

And what if he doesn't? It's actually really common for male stalkers, especially those who develop parasocial relationships with celebrities/influencers, to not actually be aware of their own behavior being harmful or threatening. Even if they are actively threatening or talking about fantasies of violence, berating her, calling her names. There are countless examples of these men being shocked to hear that their behavior has been interpreted as malicious, often citing being protective of the woman in question or acting on impulses to salvage her purity by reprimanding and punishing her.

Like, have you never seen any of these guys in action? They're delusional.

Henry, there you go again reading Supreme Court decisions before commenting. How dare you? (j/k)

In fact, reading the opinion is not even a requirement for having a loud and vociferous opinion about a case.

This board is not a place where people come to discuss the merits of a case. This board is a place where people come to repeat a narrative.

And if you disagree with the wrong people, you'll be called a mysoginist and right-winger. Those people do not have to know anything about you, other than you disagree with the narrative. And that's all they need to know about you.

Keep it up. Hopefully this board will once again become a place for reasoned discussion. I started coming back here after being away for a few years. It's appalling. It's as if some exmos went from answering difficult doctrinal questions with, "I know the church is true" to answering difficult life questions with ad hominem.

Feel free to point out any mistakes I have made in my analysis.

For anybody interested in reading the opinion before chiming in, here is a link: https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf

When I was a teenager, guys like Counterman were "taught a lesson". The father and and other male relatives or friends never bothered calling the cops. That just gives police suspects when the guy ends up in the ER mysteriously late one night.

It's been my experience that not everybody who "deserves to be in jail" ends up in jail. I worked on a case where a man was accused of robbing a store. He had a long criminal history and was a very bad guy. Everybody agreed he "oughta be in jail". But he was not even in the city on the night the crime was committed and had a solid alibi; receipts, pictures, and witnesses. The prosecutor still went forward with the case because "he's guilty of something".

That's when I learned that just even if you're a bad person, you still have to be charge with the correct crime to be put in jail.

Reading the case, it's clear that Colorado charged him with the wrong crime, and that's why he won on appeal. One only needs to read the footnote on page 5 to see this:
The statute Counterman was charged with violating is titled a “stalking” statute and also prohibits “[r]epeatedly follow[ing], approach[ing], contact[ing], [or] plac[ing] under surveillance” another person. §18–3–602(1)(c). But the State had no evidence, beyond what Counterman claimed, that he actually had followed or surveilled C. W.

In other words, Colorado charge him with stalking. To be guilty of stalking, you have to actually follow the victim. There's no evidence that he followed the victim, other than his messages claiming he saw her. The prosecution was unable to prove its case. You have to prove every element of the crime to get a guilty verdict. And being a creep is not an element of the stalking statute.

In the future, I hope that states enact statutes that make cyber-stalking a crime. And hopefully prosecutors charge creeps with the correct crime, so this doesn't happen again.

It's really disappointing that the people on this board don't even bother to look up or read the Supreme Court's opinion before launching into a rant about the Supreme Court. I thought we had some more critical thinkers here, but it seems to devolve into knee-jerk reactions.

If anybody is willing to read the opinion and discuss where the Supreme Court got it wrong, please do so. It's not easy. I paid a ton of money and spent 3 years of my my life learning how to read this mumbo jumbo. I'm not being elitist, but at least I'd like to discuss the case with others who have read it rather than just reacting to a headline repeating a narrative.

T- Bone, if you had glanced at the entire thread, you would have seen that I provided the link for the SCOTUS decision more than 21 hours before you did, at 2:41 early Tuesday morning. I also included a relevant quote from the link. The actual decision was what we have been discussing.

Now you might or might not be asking yourself what Summer was doing up at 2:41 this morning. I was up because this decision upset me deeply to the point of keeping me awake all last night. It upset me deeply because I have been a victim of stalking and harassment (see my reply to cl2 above, if you are interested.) My elderly mother was a also victim of stalking and harassment to the point that she felt compelled to change her route. Thankfully we were both able to get some relief from that. Will women in the future be able to get similar relief? I don't know.

The thing is, recent SCOTUS decisions have been deeply personal to a lot of us. They affect us (or our younger selves.) They are harmful to us as women (or gays, or blacks, etc.) I'm going to ask the same question that I have repeatedly asked Henry -- what rights have you had taken away from you lately from the current Supreme Court? Perhaps you can make an effort to understand why some of us are so touchy, jumpy, and even angry about what has been coming down from on high.

Or not.

Please wish me a good night's sleep tonight. I could use it.

summer, I was also up late last night and for much the same reason. I saw your original post asking when people were going to just start ignoring the supreme court. I almost replied that that would mark the end of the republic, but decided to remain silent instead.

I then saw you edit your reply to soften it by adding another sentence and then later edit it again to give it its present form. Presumably you kept changing your mind about the intensity with which you wished to express yourself. But your personal concern was obvious, at least to me.

I also suspect you read the transcript. I did even before the thread was started. I don't think Henry read it before his first posts because he asserted that the supremes were making it easier for victims to win stalking cases, which is bizarrely wrong. Then he read the transcript and figured out that scienter was the critical issue. You can see that in his later post talking about "recklessness". But the difference between the pre-reading and post-reading analyses is patent.

Now T-Bone joins the discussion, clearly having read the opinion but not recognizing that the operative part of the decision--the meat of the thing--is, as always, the holding at the beginning of the decision. And that holding is exactly as I have described it above and below.

What I come away from this discussion with is astonishment at what legal education must have been back in the 1960s or 1970s. Because Henry and T-Bone do not know how to read supreme court decisions. Anyone who wants to know what the supremes said need only read the first three pages. That is the part that is binding precedent, and the justices were perfectly clear about their intentions.

"The thing is, recent SCOTUS decisions have been deeply personal to a lot of us. They affect us (or our younger selves.) They are harmful to us as women (or gays, or blacks, etc.) I'm going to ask the same question that I have repeatedly asked Henry -- what rights have you had taken away from you lately from the current Supreme Court? Perhaps you can make an effort to understand why some of us are so touchy, jumpy, and even angry about what has been coming down from on high."

COMMENT: Summer: Even though I am not affected personally by any of these SC decisions or had any prior experiences that make any one of these decisions particularly potent in my life, I certainly can relate (somewhat) to those that are more deeply affected. This is one reason why I get frustrated when these decisions are misrepresented in the media, or here on RfM, in order to fuel controversy, anger, outrage, or undue concern. Such a reaction is in this instance seriously misplaced, regardless of where it comes from. (This is not Dobbs!)

To suggest that all three of the liberal women justices (champions of women's rights in other contexts) would cavalierly dismiss the rights and interests of victims of stalkers is frankly ludicrous. That did not happen here, for reasons I have explained. Others here who have continued to pound on this decision as "disastrous" are only fueling the flames of controversy through their own manifest ignorance.

You have now read the opinion. Although in some sense it is difficult to understand without some legal background, there is nothing here that suggests alarm. It is essentially a dispute about how best to protect the victims of stalkers from defenses associated with the First Amendment right of free speech, without unduly undermining such right.

When all is said and done, juries will be given jury instructions as to how to consider a First Amendment defense in a stalking case. In my experience, the subjective standard of "recklessness" invites juries to consider not just what the perpetrator thought was reckless, but what a perpetrator should have understood as being reckless speech. Juries take such rather vague instructions and generally find in favor of the party that they intuitively believe is entitled to relief, one way or another. In other words, they for the most part get it right when their instructions do not clearly dictate a prescribed legal outcome. This is also true, with the "reasonable person" standard. The whole point of both approaches is to expand on the view that a perpetrator is not protected by the First Amendment merely because the stalking activity did not encompass an express threat. "Threats" can now be treated as what the perpetrator should have understood might cause someone to feel threatened.

In other words, relax, and stop putting credence in the statements of people (even your Rfm 'friends') who do not know what they are talking about, and only wish to create or fuel controversy where none should exist.

>> In other words, relax,

Henry, it's just not ever a good idea to tell a woman to "relax" about issues that have an impact on personal safety, rights, etc. That kind of statement comes off as tone-deaf.

And honestly, after the loss of Roe v. Wade, I have personally lost trust in this Supreme Court. Many women have. Yes, I look upon many of their rulings with suspicion. I understand that you don't get this. You have never had to worry about an unintended pregnancy. You have probably never been physically attacked with intent to rape (I have, and my mother was attached as a young woman.) You have probably never suffered molestation as a child by someone who was later convicted of same (I have, and my mother did as an adult.) You have probably never been stalked or harassed (I have, my mother did as well.)

A surprising number of women, many more than you think, suffer inappropriate and illegal advances of various type during the course of their lives. This is why the "me too" movement took off.

When the Supreme Court hands down a decision that personally affects you and your safety, maybe you'll get it. Right now, it feels like I'm talking to a brick wall.



Edited 2 time(s). Last edit at 07/12/2023 10:37AM by summer.

Right now, it feels like I'm talking to a brick wall.

COMMENT: Same here!

In any event, be assured that like everyone else, I have many passions, outrages, fears, and deep-rooted personal sensitivities about matters from my own personal experiences. Nonetheless, I realize that it helps to step back from time to time and rationally assess the basis of such feelings in an effort to try to understand and manage them. Suggesting such an approach does NOT make me, or anyone else, "tone deaf" about the experiences of others that might be different from my own.

Relax, Henry. The recent SCOTUS decisions do not affect you at all. In fact, I'm surprised that you comment on these threads since the decisions have no effect on you whatsoever. Just saying.

If you read the opinion, you didn't understand it.

You say Colorado charged the perpetrator with the wrong crime and that the evidence did not support a conviction. But that's not what the supreme court said.

The Court's holding is that "The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature," "Subjective understanding" means scienter.

In short, the old law said all that was necessary was to prove that the victim had a reasonable fear of harm. There was no scienter requirement for the perpetrator. The supreme court now finds that due to First Amendment concerns, the victim must also prove the state of mind of the defendant.

It wasn't a question of whether the law was correctly chosen or whether there was sufficient evidence. Your arguments in that regard don't even enter into the holding. What does is the new scienter standard, the new mens rea or malign consciousness. As you doubtless know, those are, from strictest down, intentional, knowing, reckless, and negligent. Each of those are discussed in the holding. Thus. . .

"In this context, a recklessness standard—i.e., a showing that a
person “consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another . . .is the appropriate mens rea. Requiring purpose or knowledge would make it harder for States to counter true threats—with diminished returns for protected expression. Using a recklessness standard also fits with this Court’s defamation decisions, which adopted a recklessness rule more than a half-century ago."

There it is. "Purpose," meaning intent, is too high a standard. "Knowledge," the next highest standard, is also too strict. Recklessness is the appropriate standard. That is what this case is all about. In short, to deprive a person of their rights to free speech, you must prove that the conduct was reasonably threatening to the victim and that the perpetrator "recklessly" disregarded the likelihood that the victim would so perceive it.

So you have it wrong. The case was not overturned because the wrong law was chosen or the evidence was inadequate. The trial decision was overturned because the supremes felt it necessary to insert a new scienter requirement into the law.

How can you read the holding and not realize that?

I slept fine even after reading and replying to this as I live with 2 men.

The one at the IRS would stop at my house and wait for me to get home in my carpool at 1:30 a.m. I had to sit by him at work. Then the assistant supervisor caught on and they moved me. Even though he stopped for a while or couldn't find me, he told an old friend of mine that I know cl2 likes me, but she acts like she doesn't. I lived with my parents, but if you can believe it, YEARS LATER when I was dating my husband, we were skiing and this guy showed up. He also ended up at USU where I was and he'd follow me around there.

The one Thiokol followed me for years. He worked swing and he'd walk in my office to talk to me and I'd get up and walk in the office behind me. Not say a thing. And he lived downstairs in our apartment complex. My roommate and I moved in not knowing he was there. She hadn't met him and she learned quickly he was strange. One of her friends didn't understand and then she stopped by our apartment when we weren't home. He would stand out in front and stare up at our windows. He called and asked me out a few times. A very, very good friend from Thiokol found out about it and he told me to stay away from this guy. He lived out of state or he would have taken care of it.

This last one, I liked to go in to the office early and get a bunch of work done. I was a single mother and I was working two jobs and raising my twins. The stalker started coming in early, too, and so I had to stop working in the office and work from home, BUT I used to walk at the middle school track and he started following me there. Found out he lived along the road I took the track and that is how he found me there. He'd stop other places and stop me to talk to me while walking. He'd see me at the office and he'd get really angry at me for not waving at him. Not like I even saw him, but I wouldn't anyway. He came in one day and told me that he knew I was separated and that he was going to leave his wife. I told him I was no longer separated. Found out later he was also working with my son at a local pizza/pasta restaurant. We didn't put 2 and 2 together for several years. My son hadn't had a mental break yet (he is doing a lot better now) and he is a nice person. Everyone likes him. BUT that guy would have learned quickly to not mess with my son's mom. One time he blocked me from getting out of the gas station at 10:30 at night. And I was a single mom.

As I wrote these things, the feelings came back of the fears I had. My dad didn't take these situations lightly and he made his presence well known with the first one.

In those days, the 1970s and 1980s, even the companies didn't take these things seriously. I got a lot sexual harassment. One of them was a boss I had for a short time. EVERYONE knew about what he did to all the nice looking girls/women or said mostly. His boss got me transferred as this guy had targeted me. One of my coworkers called me 8 years later after I was not working there anymore and said, "They are taking L.D. off the plant right now." I asked how they caught him and he said cameras.

My "husband" always thought I was overreacting until he met the guy who was stalking me in the 1990s.

Not many men I worked around or my husband or even my boyfriend took it very seriously. I was shocked.



Edited 1 time(s). Last edit at 07/12/2023 12:23PM by cl2.

>> Not many men I worked around or my husband or even my boyfriend took it very seriously. I was shocked.

I don't think that's unusual, cl2. Men just don't get it because it never happens to them. Therefore, it does not exist.

My mom told me that she never told her dad/brothers/husband about her molestation and attack precisely because she feared that her family members would kill the attacker. She didn't want them to be charged or go to jail. For my attack, I went to the police. The man was convicted of raping another woman (and attacking about five others,) and was sentenced to 25 years.

It happens a lot more than most men will give credit.