Counterman v. Colorado

the magical power of things unsaid

There were, until this week, two important questions in our First Amendment litigation, which had been decided adversely to us in Texas criminal-free-speech cases.

First, in our challenges to Texas’s harassment statute, five judges of the Court of Criminal Appeals in Barton and Sanders held that a statute forbidding a person, with the intent to annoy, sending “repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another” does not “implicate” the First Amendment. Does such a statute not implicate the First Amendment?

Second in 2010’s U.S. v. Stevens, the United States Supreme Court struck down the federal crush-video statute because it targeted speech that was not in any recognized historically unprotected category. "From 1791 to the present," wrote the court, “the First Amendmen…