On March 31, 2023, NWLC joined an amicus brief led by The Lawyers’ Committee for Civil Rights Under Law to the Supreme Court in support of the State of Colorado in Counterman v. Colorado. The case arose when Billy Counterman was convicted under Colorado’s criminal stalking statute for conduct that included likely more than 1 million messages to his victim over a two-year period, including messages indicating he was physically surveilling her and threatening that she should die. Counterman challenged his conviction, arguing that speech cannot constitute a “true threat” unless the speaker had subjective intent to threaten.
The amicus brief explains that numerous federal and state civil rights laws passed since the Civil War have not required subjective intent, and that requiring subjective intent would harm civil rights plaintiffs, especially those who are Black, women, LGBTQI+, students, low-paid workers, or victims of sexual harassment or stalking (particularly victims who are women of color). Therefore, the brief asks the Court to adopt a “totality of the circumstances” test like Colorado’s, which ensures that courts properly balance the interests of victims with the rights of the defendants, including by protecting Black and other marginalized people from being falsely prosecuted for “threatening” speech when they engage in social justice activism. Finally, the brief urges that, if the Court must require subjective intent, it should only be required in criminal cases, where consequences for defendants are more serious, to ensure that civil rights laws can continue to protect essential rights.