Free Speech for Harassers? Guns for Convicted Abusers? How the Courts Undermine Women’s Safety

Valuing Speech over Safety
At the end of this term, the Supreme Court released its decision in Counterman v Colorado, a case that revolved around the place harassment and threats hold in the realm of free speech. Counterman had been harassing a local female musician – Coles Whalen – online for six years, writing comments like “Staying in cyber life is going to kill you.” and “You’re not being good for human relations. Die.” Wahlen understandably took these as threats to her safety which caused her to stop performing and start carrying a weapon out of fear. She reported Counterman’s behavior and he was eventually arrested by the police.

Counterman fought the arrest, however, because he believed his online comments did not constitute “true threats” since he did not intend any harm and, therefore, were protected by the First Amendment. Thus, this case was framed as a contest between one person’s right to free speech versus another person’s safety. The Court ruled in favor of Counterman, prioritizing freedom of speech. In a 7-2 decision the court said that a subjective test for determining “true threats” in one’s speech should be used instead of the previously used objective test. The objective test requires that a reasonable person would consider the speech in question as threatening, thus following the reasonable person standard that many of the Court’s tests rely on. The subjective test, however, requires proof that a speaker had an understanding of their speech’s harmful nature and yet was reckless in making the comments. With this new and less strict standard outlined, the Court sent the case back to a lower court to reassess Counterman’s conviction.

Some organizations, like the ACLU, have applauded this ruling as a win for freedom of speech because this subjective test makes the protection of a speaker much easier across many contexts. While I share the ACLU’s concern for the First Amendment, my belief that one person’s rights sometimes have to end where another’s start made it clear to me that this ruling did not prioritize the right cause. Whalen and every woman in a comparable situation deserves justice and this ruling did not give it to them. Instead, I found this ruling to be yet another step backward along the timeline of America’s supposed progress. Backward to a time in which people who are not straight, white men are not recognized or protected by the Constitution or the government. Thus, where the ACLU supposedly sees a win for speech, I see a win for conservatives in the war they’ve been waging against women.

The Problem with the Counterman Decision

Following the laxer subjective standard set in Counterman will make things more difficult for victims of harassment to seek protection and relief. Furthermore, considering that most victims of stalking and related harassment or threats are women, this ruling will disproportionately compromise the safety of women in this country. Or, I should say, further compromise the safety of women in this country. Stalking and online harassment isn’t the only problem, though, as domestic violence and workplace harassment continue to endanger millions of women across the nation. In fact, 1 in 4 women have found themselves in physically abusive relationships and intimate partner violence accounts for about half of homicides among women. And while shelters and support resources do exist, escaping abusive relationships remains tricky and scary, to say the least. The police often don’t offer much support either, thus leaving most women alone in protecting themselves when trying to leave and stay away from their abusive partners. To address such problems, Congress passed the Violence Against Women Act (VAWA) in 1994 and has expanded its protections several times since then. VAWA criminalizes gender-based and intimate partner violence, plus supports a broad network of local and state programs where women can seek safety and
obtain further assistance. However, conservative lawmakers, lawyers, and judges seem ready to undermine VAWA and any similar laws as showcased by the case United States v. Rahimi which the Supreme Court has agreed to hear next term.

Considering the Gun Rights of Domestic Abusers

In 2021, Zackey Rahimi signed a protective order after allegedly assaulting his ex-girlfriend and, despite a federal law preventing convicted abusers from owning firearms, he was found responsible for multiple non-fatal shootings in the month that followed. Unfortunately, this isn’t an unheard-of situation.
Even though a federal law known as the Domestic Violence Offender Gun Ban was adopted in 1994 and many orders to remove firearms from the homes of convicted abusers have been granted, many still possess those guns. Studies have also highlighted how ineffective these laws are with results showing
domestic gun violence homicides rising by about 58% in the last decade. Statistics like this provide a backdrop for Rahimi’s case. While not perfect, this law that aims to prevent convicted domestic abusers from having guns is extremely important for establishing a safer path for women trying to escape abusive relationships. However, women’s safety didn’t seem like a priority for the Circuit Court Judge hearing Rahimi’s case. The 5th U.S. Circuit Court of Appeals, notably the most conservative in the country, ruled in favor of Rahimi this February, saying the law violated his Second Amendment right. The precedent used came courtesy of the Supreme Court’s decision in New York State Rifle & Pistol Association Inc. v Bruen (2022), in which a new test for evaluating restrictions on gun ownership was established. This test required that regulations be “consistent with this nation’s historical tradition of firearm regulation” rather than simply fulfill a government interest. Thus, since there is no evidence of the law in question existing at the time the Second Amendment was passed, nor is there evidence that its goals would be something the framers would have fought for, the Circuit Court ruled that neither the law nor its sentiment should hold any validity today.

Following this ruling, the Department of Justice petitioned the Supreme Court to weigh in on this issue. Specifically, the DOJ wants the Court to overturn the Circuit Court’s decision and allow the Domestic Violent Offender Gun Ban to stand. If the Supreme Court agrees with the lower court’s decision, however, America would become an even more dangerous place for women. Knowing their abusive partner is allowed to own firearms after being reported and found guilty would most likely further deter women from reporting issues or escaping abusive relationships for fear of retaliation. However, it seems unlikely that the Court would uphold the law based on women’s safety alone. In other words, the conservative effort to undermine VAWA, and any progress on women’s rights, could very well be supported by our current Supreme Court – marking yet another won battle in the war against women.

By Charlize Cruger, Accounting & Membership Intern

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