Genevieve Lakier (University of Chicago Law School) & Evelyn Douek (Stanford Law School) have posted The First Amendment Problem of Stalking: Counterman, Stevens, and the Limits of History and Tradition (California Law Review, Vol. 113, 2025) on SSRN. Here is the abstract:
In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But this is puzzling because Counterman was not in fact convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone in order to be guilty of the crime. This Article argues that the Supreme Court’s confusion about the most basic facts of the case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence. These pathologies are a consequence of the impoverished view of the First Amendment’s boundaries depicted in the Court’s recent decisions, which suggest that the First Amendment’s doctrinal terrain can be described by a simple list of historically unprotected categories. This thin account of the First Amendment, and the doctrinal distortions it creates, are not inevitable, however. The Article argues for an alternative, more multi-dimensional approach to the question of the First Amendment’s boundaries—one that rests on a richer understanding of the traditions of speech regulation in the United States—and sketches out its implications for the law of stalking and, potentially, many other areas of free speech law. Courts do not need to deny the facts of the cases they adjudicate to craft a First Amendment jurisprudence that is doctrinally coherent, historically informed, and normatively desirable.
And from the article:
We take no position here on how specifically First Amendment doctrine should address the problem of harassment, or NCII, or doxing—or, for that matter, other kinds of expression that are likely to pose similar problems. Instead, our argument is only that they should be dealt with head-on and not through the distorted kaleidoscope produced by a rigid interpretation of Stevens’ categories. This is not to engage in a “free-floating test for First Amendment coverage” that Stevens declares “startling and dangerous.”325 It is to accept only the obvious reality that a complete map of the vast legal terrain that is speech regulation was not, and should not be taken to have been, comprehensively described by the Court in a single paragraph in 2010.
To the extent that the Stevens test is justified by the First Amendment’s history and tradition, as one of us has written elsewhere and this Article has further shown, it relies on an inaccurate account of the past.326 And to the extent that Stevens is justified as a methodological tool to provide a more determinate and restrained mode of judicial reasoning, Counterman and the stalking cases have shown that this is an inaccurate forecast of the future. Courts, including the Supreme Court, will struggle when they encounter novel problems that cannot neatly be slotted into the boxes Stevens describes, but they will not simply abandon their judicial intuitions and engage in dry,
rote reasoning based on taxonomical labels.
Highly recommended. Download it while it's hot!
I do wish this article was longer, with more discussion of the way forward! 73 great pages, but 100 would have been lovely.
