A Connecticut bill to create a working group examining harassment on social media, particularly against legislators, generated some controversy surrounding social media use and free speech rights. The bill passed out of committee but was never taken up by the General Assembly.
Opponents argued largely via emailed public hearing statements, many of which were anonymous, and raised concerns that such measures would encourage censorship and free speech violations, particularly when it came to criticizing elected officials, as the first iteration of the bill was meant to develop guidelines for “the reporting and enforcement of abusive, offensive or threatening harassment of state and municipal elected officials.”
The language was later altered by the Government Administration and Elections Committee to instead create a working group that would assess online harassment and abuse on social media in a broader sense and study “what state or municipal action is needed to address negative online behaviors,” while considering free speech rights and “potential changes in state law.”
However, the Supreme Court of the United States (SCOTUS) issued a 7-2 ruling on June 27 that makes it more difficult to prosecute online harassment, overturning the stalking conviction of Billy Counterman, a Colorado man who had sent hundreds of social media messages to a singer, which she interpreted as threatening, harassing and stalking.
The majority opinion by Justice Elena Kagan said that in order to constitute a threat that is not protected by the First Amendment, the “state must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness.”
According to the decision, SCOTUS was concerned about the chilling of free speech when online speech could be subjectively interpreted as threatening. “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,” Kagan wrote.
Both the American Civil Liberties Union (ACLU) and the Foundation for Individual Rights and Expression (FIRE) filed amicus briefs. The ACLU argued the Supreme Court “must establish both that the offending statements were objectively threatening in context and that the defendant subjectively intended to threaten the recipient.”
Particularly in a time of highly polarized politics, some Connecticut lawmakers and law enforcement have grown increasingly concerned regarding social media messages and comments directed at elected officials. Although threatening is already illegal, social media messages that may be vitriolic and interpreted as a threat was a gray area.
Agents with the Federal Bureau of Investigation scheduled a meeting with officers of the State Capitol Police Department in November of 2022 to discuss threats and harassment against Connecticut legislators and “potential areas of collaboration,” according to emails obtained through a Freedom of Information Request.
The meeting took place after an election season that saw one man arrested after threatening Rep. Tammy Nuccio, R-Tolland, over a misplaced lawn sign, although the charges were eventually dropped.