Page:Counterman v. Colorado.pdf/24

Rh certain groups. A jury’s determination of when angry hyperbole crosses the line will depend on amorphous norms around language, which will vary greatly from one discursive community to another. Juries’ decisions will reflect their “background knowledge and media consumption.” Minnesota Voters Alliance v. Mansky, 585 U. S. ___, ___ (2018) (slip op., at 17). “[S]peakers whose ideas or views occupy the fringes of our society have more to fear, for their violent and extreme rhetoric, even if intended simply to convey an idea or express displeasure, is more likely to strike a reasonable person as threatening.” United States v. White, 670 F. 3d 498, 525 (CA4 2012) (Floyd, J., concurring in part and dissenting in part). Members of certain groups, including religious and cultural minorities, can also use language that is more susceptible to being misinterpreted by outsiders. And unfortunately yet predictably, racial and cultural stereotypes can also influence whether speech is perceived as dangerous. See, e.g., A. Dunbar, C. Kubrin, & N. Scurich, The Threatening Nature of “Rap” Music, 22 J. Psychol. Pub. Pol’y & L. 281, 281–282, 288–290 (2016).

On the other hand, the internetInternet [sic] has also made stalking and harassment even easier. Stalking can be devastating and dangerous. See Brief for First Amendment Scholars as Amici Curiae 7–8. Lives can be ruined, and in the most tragic instances, lives are lost. Ibid. Harassers can hide behind online anonymity while tormenting others. This happens in the context of intimate relationships and it happens with strangers. Overly constraining our society’s ability to respond to stalking would come at a real cost. For the reasons given, however, a mens rea standard for true threats would not hinder stalking prosecutions. See.

Even isolated threatening speech can do real harm. Such speech not only disrupts lives, it can silence the speech of others who become afraid to speak out. A mens rea