The Supreme Court Just Legalized Stalking

This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. ACLU attorney Brian Hauss praised the court for guaranteeing that “inadvertently threatening speech cannot be criminalized” and for “provid essential breathing room for public debate.” Foundation for Individual Rights and Expression attorney Jay Diaz rejoiced that “fewer prosecutors will be able to criminalize speech tomorrow than was possible yesterday” and praised the majority for “ensur that Americans would not face prosecution for parody or political commentary.” Based on these characterizations, one could be forgiven for thinking that the Counterman case involved controversial political advocacy, an ambiguous offhand remark, or uncivil name-calling. That potentially lifesaving outcome is now unavailable to other stalking victims because the Supreme Court has declared stalking to be protected by the First Amendment, overturning Counterman’s conviction and asking a lower court to reconsider it in light of its new standard that demands prosecutors show that stalkers consciously disregarded a serious risk that their messages would be perceived as threatening. Given that the majority of stalkers are male and the majority of stalking victims are female, the thrust of the opinion can be put more bluntly: The First Amendment does not protect “speech,” but men’s speech at the expense of women’s speech; men’s delusions at the expense of women’s lives. But in a case about stalking—in which a man’s terrifying, unwanted, repeated communications forced a woman to abandon the artistic expression she loved, buy a gun she didn’t want in order to try to protect herself, and eventually flee the state—Justice Elena Kagan’s majority opinion focused not on the life-threatening, objectively reasonable, statistically documented fear and silencing of stalking victims, but on the hypothetical fear of hypothetical speakers whose speech could hypothetically be mistaken for threats: “The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs—all those may lead him to swallow words that are in fact not true threats.” Tellingly, the majority offers no empirical evidence of this supposed “chilling effect” that must be counteracted above all else.