Tag: Constitutional Law

Introduction

The core of First Amendment free speech doctrine concerns the right of speakers to convey the message of their choice, free of repression or retaliation by the government. In addition, a small but significant body of law also addresses the rights of listeners to obtain access to information and speech in the face of coercive state measures seeking to deprive them of that access. Finally, there is also a well-established “compelled speech doctrine,” which addresses the right of speakers to resist government compulsions to speak—i.e., a right not to speak. This paper considers a question heretofore largely ignored by the courts, which is whether the First Amendment also protects a right against compelled listening.

As it turns out, a right against compelled listening raises complex and difficult questions because such a putative right in fact has two possible aspects to it. The first would be a First Amendment right not to listen that operates against the state, restricting the state’s power to force an unwilling listener to hear the state’s chosen message. Such a right must exist if public discourse among citizens is to play its democracy-empowering role (and also must exist under autonomy-based theories of free speech, for obvious reasons). But it is also, as we shall see, necessarily and distinctly limited.

But the more interesting questions raised by a right against compelled listening concern not disputes between listeners and the state, which are the subject of the classic First Amendment tradition, but rather disputes between non-state speakers and listeners, which the state must somehow accommodate or resolve. In these situations, in short, the question is whether the state may or may not enforce a listener’s desire to be left alone. Furthermore, while disputes strictly between private speakers and listeners of course do not themselves trigger the First Amendment because of the state action doctrine, when the state steps in to resolve those disputes, the First Amendment is very much implicated. This paper’s ultimate goal is to identify the state’s proper and constitutional role in those situations.

Part I briefly summarizes the classic First Amendment rights of speakers to speak and listeners to listen as against state coercion. It then examines the constitutional relationship between speakers, listeners, and their rights. Part II considers whether, just as the right to speak has been interpreted to generate a right not to speak, so too a right to listen should have the converse—a right not to listen. It further explores the two possible aspects of such a “right” described above,¹I place the word “right” in quotations because, as we shall see, as against private speakers what is at stake is not technically a constitutional right, but rather a constitutionally relevant interest. and closes by considering the role of the state in the face of speaker versus listener disputes. Finally, Part III considers some doctrinal applications of a listener’s right to be left alone.

I. The Classic First Amendment

In this Part, we will very briefly consider the nature of “classic” First Amendment rights to speak and to listen, as against state coercion. We will then explore the relationship between those rights.

A. Speakers’ Rights and Listeners’ Rights

It is conventional wisdom that First Amendment law focuses almost exclusively on speakers and their “right” to speak, free from state interference. Even those of us who embrace instrumental justifications for protecting free speech, such as advancing democratic self-governance, nonetheless tend to fixate on speakers’ interests in contributing to public discourse when we analyze First Amendment conflicts. Indeed, the bulk of First Amendment doctrine, including the concept of unprotected categories of speech²See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (defining “fighting words”); Roth v. United States, 354 U.S. 476, 486 (1957) (holding that obscenity is not protected speech); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (establishing the incitement standard); New York v. Ferber, 458 U.S. 747, 763 (1982) (prohibiting child pornography). and the foundational distinction between content-based and content-neutral laws,³Reed v. Town of Gilbert, 576 U.S. 155, 163–64 (2015). all concern government suppression of speech or speakers (often, but not always, speech or speakers the state dislikes).

One further point about the right to speak that should be a given: the right to free speech under the First Amendment must incorporate a right to generally choose one’s audience (though, of course, like any other right, this right is not absolute and might be outweighed by a sufficiently strong governmental interest). The right to choose an audience is implicit in the Court’s standard test to evaluate content-neutral “time, place, or manner” regulations, which requires inter alia that any regulation “leave open ample alternative channels of communication.”⁴Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)). If such “ample alternative channels” referred to the ability to speak to any audience, the test would have no teeth at all—and that is not the case, as illustrated by numerous cases.⁵City of Ladue v. Gilleo, 512 U.S. 43, 58–59 (1994); McCullen v. Coakley, 573 U.S. 464, 490–91 (2014); see also Martin v. City of Struthers, 319 U.S. 141, 146–47 (1943). Furthermore, in the leading case dealing with expressive conduct, a topic closely related to content-neutral restrictions on speech, the second Justice Harlan also went out of his way to state that he would not uphold a regulation of conduct with an “incidental” impact on expression if the law “in practice has the effect of entirely preventing a ‘speaker’ from reaching a significant audience with whom he could not otherwise lawfully communicate.”⁶United States v. O’Brien, 391 U.S. 367, 388–89 (1968) (Harlan, J., concurring).

Admittedly, the courts have not been entirely consistent on this issue. Thus, there are undoubtedly some cases, especially in the lower courts, suggesting that denying a speaker the ability to reach a specific audience need not be fatal to a content-neutral restriction on speech.⁷Interstate Outdoor Advert., L.P. v. Zoning Bd. of Mount Laurel, 706 F.3d 527, 535 (3d Cir. 2013) (upholding content-neutral restriction on non-commercial billboards, stating that “the mere fact that Interstate will not be able to reach the distinct audience of travelers on the particular section of I-295 that it desires to target does not mean that adequate alternative channels of communication do not exist”). But this simply cannot be correct. For example, this would mean that during the 2024 presidential election, a prohibition on the Trump or Harris campaign advertising in a swing state such as Pennsylvania would be permissible if both candidates were permitted to reach alternative audiences in California and Texas. Such a result would make a mockery of the First Amendment (and democracy).

In addition to a right to speak, there is a well-developed body of doctrine protecting the right of listeners to access speech the state wishes to shield them from. The foundational case here is Lamont v. Postmaster General of the United States.⁸Lamont v. Postmaster Gen., 381 U.S. 301 (1965). In Lamont, the Court unanimously struck down a federal statute that required the Post Office to block the delivery of material determined to be “communist political propaganda” and only deliver the materials on the written request of the recipient (interestingly, Lamont was the first case in which the Supreme Court invalidated a federal statute on First Amendment grounds).⁹Id. at 302–04; Xiangnong (George) Wang, Listeners’ Rights in the Time of Propaganda: The Story of Lamont v. Postmaster General, Knight First Amend. Inst. Colum. Univ. (Feb. 14, 2025), https://knightcolumbia.org/content/listeners-rights-in-the-time-of-propaganda-the-story-of-lamont-v-postmaster-general [https://perma.cc/48MF-JSJN]. Crucially, for our purposes, the basis of this holding was not the right of foreigners to mail communist propaganda into the United States, which almost certainly does not exist,¹⁰Agency for Int’l Dev. v. All. for Open Soc’y Int’l, 140 S. Ct. 2082, 2089 (2020). but rather the First Amendment rights of addressees to receive information without impediment¹¹Lamont, 381 U.S. at 307.—a point Justice Brennan made explicit in his concurrence.¹²Id. at 307–08 (Brennan, J., concurring).

If Lamont marks the origin of listeners’ right in the Supreme Court, their apotheosis occurred a little over a decade later, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.¹³Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 773 (1976) [hereinafter Virginia Pharmacy]. There, prescription drug consumers challenged a Virginia ethical rule that barred pharmacists from advertising prescription drug prices.¹⁴      Id. at 753. Because no pharmacist joined the lawsuit, the Court could only hear the merits if it recognized a First Amendment right on the part of listeners to receive information—which it explicitly did before holding for the first time that the First Amendment protected commercial speech.¹⁵Id. at 756–57

Finally, one additional case in which listeners’ rights were importantly implicated, though not central to the decision, is Red Lion Broadcasting Co. v. Federal Communications Commission.¹⁶Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969). In Red Lion, the Supreme Court upheld the “Fairness Doctrine,” which was a federal regulation requiring radio and television broadcasters who broadcast a “personal attack” on an individual or group to provide airtime to the subject of the attack to respond.¹⁷Id. In doing so, the Court emphasized that in the context of broadcasting, because of the “scarcity” of available broadcast frequencies, speakers’ rights could not be the focus of attention.¹⁸Id. Instead, the Court said, “it is the right of the viewers and listeners, not the right of broadcasters, which is paramount” in assessing First Amendment challenges to broadcast regulations.¹⁹Id. at 390. So, like Lamont before it and Virginia Pharmacy after it, the Red Lion Court appeared to grant constitutional status to the First Amendment interests of listeners. Indeed, Red Lion was cited in Virginia Pharmacy for that proposition.²⁰Virginia Pharmacy, 425 U.S. at 757.

B. Of Speakers and Listeners

The Supreme Court has thus recognized robust First Amendment rights for speakers and listeners, but it has largely treated them as distinct rights—no doubt because in the two key listeners’ rights cases, Lamont and Virginia Pharmacy, willing speakers were absent from the litigation. But this approach cannot be correct. After all, what exactly is the point of “speaking” if no one is listening?²¹When I use words like “speak” here, I am referring to all forms of communication, including oral speech, writing, video, electronic communications, picketing, marching, etc. And concomitantly, the word “listener” is meant to encompass actual listeners, readers, viewers, and generally all audiences for expression. To shove all of this into “freedom of speech” is of course historical and textual nonsense, for which mea culpa. But at least in this regard I can say that I am following the (bad) lead of the Supreme Court. See, e.g., John Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 61–63 (Yale Univ. Press 2012) (noting the disappearance of the Assembly Clause in the Supreme Court’s modern jurisprudence); Sonja R. West, Awakening the Press Clause, 58 UCLA L. Rev. 1025, 1027–28 (2011) (same regarding Press Clause); Ronald J. Krotoszynski, Jr., Reclaiming the Petition Clause: Seditious Libel, “Offensive” Protest, and the Right to Petition the Government for a Redress of Grievances 10–11, 17–19, 157–62 (2012) (same regarding Petition Clause). It is true that some people keep private diaries or talk to themselves aloud—what is called “intrapersonal communication.”²²See e.g., Intrapersonal Communication: Different Voices, Different Minds (Donna R. Vocate ed., 1994) (collecting works from various authors on the subject of intrapersonal communication); Paul N. Campbell, Language as Intrapersonal and Poetic Process, 2 Phil. & Rhetoric 200, 204–05 (1969); Patrick Jemmer, Intrapersonal Communication: The Hidden Language, 9 J. Clinical Hypnosis 37, 38 (2009). But there are reasons to doubt whether such audience-less “expression” falls within the First Amendment;²³Ashutosh Bhagwat, When Speech Is Not “Speech”, 78 Ohio St. L.J. 839, 854–55 (2017). and in any event, it is certainly not the focus of most First Amendment jurisprudence or disputes. Normally, speech is meaningful, whether viewed from an instrumental or autonomy standpoint, if it has an audience. Admittedly, that audience need not be immediate or identifiable to the “speaker”; after all, we still read Shakespeare and Dickens. But reaching an audience is the point of communication. This is why in the area of expressive conduct, the Supreme Court has explicitly said that conduct is expressive—and so potentially protected by the First Amendment—only when “the likelihood was great that the message [intended to be communicated] would be understood by those who viewed it.”²⁴Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410–11 (1974)).

Of course, in emphasizing the existence of listeners as necessary for speech to be meaningful, I am in some sense preaching to the choir here, since this symposium specifically focuses on listeners. But I would suggest that focusing on listeners in isolation is also a bit myopic, in the same way as a singular focus on speakers. Because just as speaking without an audience is meaningless, so too is listening without a speaker. What does it mean to speak about “listeners” and “listeners’ rights” while ignoring who the listener is listening to—who, in short, the speaker is? Yet in the few contexts in which the Supreme Court has actually considered listeners’ interests in First Amendment cases, that is largely what it has done.

Consider in this regard Virginia Pharmacy. The Court’s holding in that case that the First Amendment protects recipients of speech/information rather than just speakers, is now well-accepted; but in the context of that case, it is a bit odd. In recognizing the rights of recipients of information, the Court added a caveat that such rights exist “where a speaker exists, as is the case here,” citing to one page in the Stipulated Facts to support this assertion.²⁵Virginia Pharmacy, 425 U.S. at 756, 756 n.14. But given that pharmacists had not chosen to join this lawsuit and in fact had obvious, anticompetitive reasons to avoid advertising prices so long as their competitors did the same, the Court’s assumption that willing speakers already existed seems unjustified. Admittedly, once the advertising ban was struck down, it was likely that some pharmacists would choose to advertise drug prices, but whether that would benefit any individual plaintiff/listener was far from clear absent widespread advertising of drug prices.

The Court did somewhat better in analyzing the relationship between speakers and listeners in Red Lion. Unlike in Virginia Pharmacy, there is little doubt that Red Lion involved willing speakers—in the shape of the broadcasters themselves (the plaintiff in the case was, in fact, a broadcaster²⁶Red Lion Broad. Co. v. FCC, 395 U.S. 367, 371 (1969). )—who would communicate to listeners/viewers. But by failing to seriously analyze both listeners’ and speakers’ interests and incentives in assessing free speech issues, the Red Lion Court created a conundrum. The Fairness Doctrine may have, in theory, advanced broadcast audiences’ interest in receiving balanced coverage of public issues, but it also incentivized broadcasters to avoid taking strong editorial positions on public issues other than anodyne centrist ones. Moreover, it disincentivized coverage of public issues in favor of generic entertainment, in order to avoid the strictures of the Fairness Doctrine.²⁷See Ashutosh Bhagwat, The New Gatekeepers?: Social Media and the “Search for Truth”, 3 J. Free Speech L. 41, 47 (2023); Newton N. Minow, Speech to National Association of Broadcasters, Washington, D.C.: Television and the Public Interest (May 9, 1961) (1961 speech by F.C.C. Chair describing television as “a vast wasteland”), https://www.americanrhetoric.com/speeches/newtonminow.htm [https://perma.cc/QQM5-9PP7]. But faced with this argument, the Court simply (and rather naively) deferred to the FCC’s views that the “possibility [of any such incentive effect] is at best speculative.”²⁸Red Lion, 395 U.S. at 393. Yet less than two decades later the FCC itself, in the course of repealing the Fairness Doctrine, concluded that the doctrine did in fact create substantial “chilling effects” because “the fairness doctrine provides broadcasters with a powerful incentive not to air controversial issue programming.”²⁹In re Complaint of Syracuse Peace Council Against Television Station WTVH Syracuse, New York, FCC 87-266, 2 FCC Rcd. 5043, 5049–50 (1987). Of course if this was true—as is likely—then without speakers, listeners during the Fairness Doctrine era were necessarily left (so to speak) in the dark regarding public policy controversies. So again, by failing to seriously analyze both sides of the communicative relationship, the Court effectively harmed both speakers and listeners.

The point of this discussion is not to suggest that listeners/audience members lack meaningful First Amendment interests—of course they do. It is merely to suggest that discussing listeners’ interests and “rights” without also considering who the relevant speakers might be produces a deeply incomplete, and sometimes meaningless analysis. Expression, in short, is not a solitary activity on either side of the speaker/listener coin. It is a joint activity, a form of interpersonal interaction or association between speakers and audiences. It is relational in nature. The First Amendment, after all, does not protect “the right to speak” or “the right to listen;” it protects “the freedom of speech.”³⁰U.S. Const. amend. I. By focusing on individual “rights,” however, whether of speakers or listeners, courts and commentators have failed to recognize the relational nature of that freedom.

II. A “Right” Not to Listen

Until now, we have generally considered the nature of First Amendment speakers’ and listeners’ rights and their interrelationship with each other. We will now apply those insights to considering what exactly it is that the First Amendment protects vis-à-vis listeners, focusing in particular on a putative right to not listen to unwanted speech.

In considering this issue, it is important to bear in mind a structural point. Most First Amendment law addresses the relationship between speakers or listeners on the one hand, and the state on the other. The question in those cases is what limits there are on the state’s right to coerce speakers or listeners. That is where our discussion will begin, by examining rights not to speak, and not to listen, as against the state. But for reasons already discussed, “the freedom of speech” also implicates another key relationship: that between speakers and listeners. Important and difficult First Amendment questions arise about the nature of and limits on the state’s power to regulate that relationship. These are the topics of Parts II.B and II.C.

A. Converse Rights: Speakers and Listeners v. The State

As we have seen, the First Amendment famously protects the right of speakers to express the message of their choice, free from state interference. But the Court has also interpreted the First Amendment to protect a converse right—to not be compelled to speak against one’s will.³¹For a careful, theoretical consideration of such converse rights, see generally Joseph Blocher, Rights To and Not To, 100 Cal. L. Rev. 761 (2012). The right against compelled speech was first recognized in the Supreme Court’s famous decision in West Virginia State Board of Education v. Barnette,³²W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). in which the Court struck down a requirement that public school students participate in a flag salute that was challenged by school children whose beliefs as Jehovah’s Witnesses forbade them from participating. Barnette thus established that the positive First Amendment right to speak was paired with a negative right not to speak.

While the right against compelled speech was originally a relatively narrow and circumscribed right, in recent years, the Supreme Court has expanded its scope significantly. For example, in the 2018 case National Institute of Family and Life Advocates v. Becerra (“NIFLA”), the Court invoked the right to strike down a California statute that required so-called “crisis pregnancy centers”—medically licensed facilities run by abortion opponents who provide medical services to pregnant women—to post notices informing patients that the State of California provided funding for low- or no-cost abortions (and other family planning services) to eligible women.³³Nat’l Inst. of Family and Life Advocs. v. Becerra, 585 U.S. 755 (2018) [hereinafter NIFLA]. While the NIFLA case raised many complex issues, such as whether “professional speech” received lesser First Amendment protection,³⁴Id. at 766–68. the core holding was that the required notice violated the First Amendment.³⁵Id. at 773–75. Importantly, in NIFLA, the majority blurred the distinction between the positive right to speak and the negative right against compelled speech, by holding that “compelling individuals to speak a particular message . . . ‘alte[rs] the content of [their] speech.’ ”³⁶Id. at 766 (quoting Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988)). As such, the Court suggested that in future compelled speech cases it would apply strict scrutiny, the test it uses for content-based restrictions on speech—something the Court had not done with any consistency prior to NIFLA.³⁷Admittedly, the Court had equated compelled speech with speech suppression occasionally, notably in the Riley case quoted in NIFLA, but Riley’s throw away comment was based on a citation to a case, Mia. Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 256 (1974), which did in fact involve a direct restriction on speech, because the “right of reply” statute struck down in that case was triggered by a newspaper’s publication of any story attacking “the personal character or official record” of any candidate for public office. Id. at 244; see also id. at 256 (“The Florida statute exacts a penalty on the basis of the content of a newspaper.”).

Another even more striking example of the extension of the compelled speech doctrine is 303 Creative LLC v. Elenis.³⁸303 Creative LLC v. Elenis, 600 U.S. 570 (2023). In that case, the Court held that a wedding website designer could refuse to work for same-sex couples, in violation of state antidiscrimination law, because to force her to do so would “compel speech [the designer] does not wish to provide.”³⁹Id. at 588. Thus, even in a situation in which a person is engaging in a commercial enterprise and providing services for payment, the Court has found that the compelled speech doctrine provides robust protections.

Of course, even in the current era, the right against compelled speech is not absolute. Most notably, the Court has indicated that in the context of commercial transactions, the First Amendment does not prohibit requiring “the disclosure of ‘purely factual and uncontroversial information about the terms under which . . . the services will be available.’ ”⁴⁰NIFLA, 585 U.S. at 768 (quoting Zauderer v. Off. of Disciplinary Couns. of the Sup. Ct. of Ohio, 471 U.S. 626, 651 (1985)). As to whether going forward the Court will continue to recognize such limits on the compelled speech doctrine, see generally Alan Chen, Compelled Speech and the Regulatory State, 97 Ind. L.J. 881 (2022). More broadly, the Court has said that “health and safety warnings long considered permissible” remain constitutional⁴¹NIFLA, 585 U.S. at 775. and that the speech of professionals may be regulated as an incidental aspect of regulating professional conduct.⁴²Id. at 769–70. In these contexts, current doctrine recognizes that listener interests can sometimes trump a speaker’s interest against compelled speech. But in the realm of ideological and cultural speech, the Court’s rule against compelling expression has come to be well-nigh absolute.

Given the robustness of the modern right against compelled speech, should the First Amendment also be understood to protect a robust right not to listen? Given the general symmetry between speaker and listener rights and their interlinked, relational nature, the answer would seem to be yes. Once the relational nature of “freedom of speech” is recognized, there is no logical reason to grant speakers greater rights than listeners; they are, after all, engaged on equal terms in a joint project—though, to my knowledge, the Court has never addressed the issue.

Moreover, not recognizing a right not to listen would have catastrophic implications for both autonomy-based and instrumental understandings of the purpose of free speech protections. The autonomy point is obvious—it is hard to imagine a greater intrusion on autonomy than forcing an individual to listen to speech they wished to avoid. But the implications for instrumental, democracy-based models of free speech are equally obvious. After all, if an incumbent government party or official can force voters to listen to the party’s propaganda but not their opponents’ propaganda, it is hard to imagine how any subsequent political election could be deemed fair or legitimate. More fundamentally, the shape and content of the public discourse essential for democracy must be under the control of the public, not the government, if popular sovereignty is to have any meaning.

It should be noted, though, that in practice, a right not to listen as against the state, while it must be real and robust in certain spheres—notably public discourse—has significant limits. The government in fact forces us to listen to messages of its choosing all the time as a condition of engaging in certain activities—often while also compelling the relevant speech. Every time one gets on a plane, one is forced to listen to a federally mandated safety announcement (and airlines are required to communicate them). Employees are forced to suffer through state-mandated trainings, such as sexual harassment trainings, all the time (and employers are required to provide them). My own employer, the University of California—a state entity—is particularly training-happy. Safety instructions are required for employees in many hazardous industries—and so on ad infinitum. But within the core First Amendment domains such as public discourse and artistic/literary expression, a very strong right not to listen—which can be offset only by the weightiest state interests—must exist. The only reason it has not been recognized, it would seem, is that governments appear to assume the existence of such a core right and so stay clear of it.

B. Relational Rights: Speakers v. Listeners

While a right not to listen as against the state seems clearly justified by basic First Amendment principles, much harder questions arise when we consider the nature of a right to be left alone in the context of the relationship between speakers and listeners. If individuals have a right not to listen to a message the state seeks to foist on them, what about a message that a private speaker wishes to force them to absorb?

1. Four Scenarios

To understand the nature of the relationship between speakers and listeners, it is worth considering four different scenarios. In the first, both speaker and listener are willing, and wish to communicate. That is the core of First Amendment law, in which the only question is state power to coerce—when coercing either speaker or listener necessarily coerces the other. A second scenario is when neither speaker nor listener is willing or desirous of communicating. In that situation, state interference would be fairly bizarre, except under specific regulatory circumstances, such as safety videos on airlines or workplace trainings, both situations in which neither the speaker nor listener has a choice not to participate. Indeed, the fact that we sometimes compel both speech and listening is a further indication of how speaker and listener interests are intertwined.⁴³Thanks to Joseph Blocher for this insight.

The difficult question arises when speakers and listeners disagree. When a listener wishes to hear a message but a speaker does not wish to speak, the compelled speech doctrine, when applicable, prevents the government from intervening on behalf of listeners. Of course, the compelled speech doctrine does not always protect speakers. As noted earlier, within the commercial sphere, disclosure requirements are ubiquitous and intended to protect listeners—presumably McDonald’s doesn’t really want to tell customers how many calories are in a Big Mac, no matter how much the customers need or want to know. But in the sphere of political and cultural speech, the speaker’s wishes will generally prevail given the strength of the modern compelled speech doctrine.⁴⁴For an argument that the Court has gone too far in this area in privileging speakers against listeners, see Toni M. Massaro & Helen Norton, Free Speech and Democracy: A Primer for Twenty-First Century Reforms, 54 U.C. Davis L. Rev. 1631, 1663–67 (2021). Nor of course can listeners engage in self-help, since physically forcing another to engage in expression is generally tortious and/or criminal conduct.

But what about the opposite situation, when a speaker wishes to speak, but their chosen audience does not want to hear their message? In that situation, does the listener have a comparable ability not to listen, as the speaker does not to speak? Note that unlike forcing someone to speak, addressing words at an unwilling listener is not inherently illegal or tortious, so speakers can—and often do—engage in “self-help” in those circumstances by foisting unwanted speech on listeners. The question is: what is the appropriate role of the government, and in particular, can the state protect listeners from unwanted speech? Oddly enough, the Supreme Court has barely addressed this question directly, and insofar as it has done so, it has suggested that the answer is no by giving little weight to listeners’ interests.⁴⁵I say “interests,” not “rights,” because under the state action doctrine, listeners cannot have First Amendment rights against non-state speakers.

The most significant case to this effect is Cohen v. California.⁴⁶Cohen v. California, 403 U.S. 15 (1971). In Cohen the Court, in a famously eloquent opinion by Justice Harlan, reversed Cohen’s conviction for wearing a jacket into a courthouse with the words “Fuck the Draft” written on it.⁴⁷            Id. at 16, 26. The case is generally understood to hold that non-obscene but offensive or indecent speech is protected by the First Amendment. But in the course of so holding, the Court had to address the objection that Cohen had “thrust [his speech] upon unwilling or unsuspecting viewers” and that the government had the right to shield that audience from offense.⁴⁸Id. at 15. The Court’s response was that absent an “intrusion in to the privacy of the home,” the only remedy for offended viewers was “averting their eyes.”⁴⁹Id. at 21. The Court failed, it should be noted, to explore how that remedy would work with respect to oral speech.⁵⁰Id.

A more recent decision involving highly offensive speech, Snyder v. Phelps,⁵¹Snyder v. Phelps, 562 U.S. 443 (2011). adopts a similar tone. In Snyder, members of a church (the Westboro Baptist Church of Topeka, Kansas) repeatedly protested at military funerals to publicize their belief that God was punishing the United States for its tolerance of homosexuality, especially in the military.⁵²Id. at 448. After one such protest, the father of the fallen soldier whose funeral the church picketed sued the church and its members for intentional infliction of emotional distress and after trial, won a significant verdict.⁵³Id. at 450. But the Supreme Court, by an 8-1 vote, reversed. It held that because the protesters’ speech was “on a matter of public concern,” the First Amendment flatly precluded imposing liability based on the offensiveness or hurtfulness of the speech.⁵⁴Id. at 458. And crucially for our purposes, when confronted with an argument based on the enormous (and uncontested) emotional harm that the protesters’ choices imposed on the father, the Court responded as follows: “But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a ‘special position in terms of First Amendment protection.’ ”⁵⁵Id. at 456 (quoting United States v. Grace, 461 U.S. 171, 180 (1983)). In other words, the Court’s view was that at least in the public forum, the rights of offensive speakers almost always trump those of offended listeners. Nor are Cohen and Snyder alone in holding that at least in public places, offended audiences must bear the significant burdens and costs of offense.⁵⁶See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 210–11 (1975).

The only nod the Court has given towards the notion that audience members have some interest in avoiding unwanted speech can be found in the so-called “captive audience” doctrine. In theory, the captive audience doctrine provides that when speech is being forced upon listeners who cannot reasonably avoid it, the government may step in and silence the speech.⁵⁷For a good, recent summary of the doctrine, see generally R. George Wright, The Captive Audience Doctrine Today 20 Duke J. Const. L. & Pub. Pol’y 1 (2025). And famously, in 1974 in the Lehman v. City of Shaker Heights decision, the Court—albeit in a splintered opinion—applied that doctrine to uphold a municipal regulation that refused to accept political advertising in the interior of buses and street cars, even though other advertising was accepted.⁵⁸Lehman v. City of Shaker Heights, 418 U.S. 298, 302 (1974) (plurality opinion); id. at 307–08 (Douglas, J., concurring). But in fact, a closer look shows that since 1974, the so-called “captive audience” doctrine is more bark than bite.

It is true that in a handful of cases, the Court has invoked concepts of captive audiences to uphold restrictions on speech. Thus in Rowan v. United States Post Office Department, the Court cited the captive audience doctrine in upholding a law that permitted mail recipients to refuse to accept more mail from a particular sender.⁵⁹Rowan v. U.S. Post Off. Dep’t, 397 U.S. 728, 738 (1970). Similarly, in F.C.C. v. Pacifica Foundation, the Court justified a restriction on daytime broadcasts of “indecent” materials in part on the theory, citing Rowan, that broadcasting invades the home.⁶⁰FCC v. Pacifica Found., 438 U.S. 726, 748–49 (1978). And perhaps most famously, in Frisby v. Schultz, the Court upheld a municipal prohibition on targeted, residential picketing on the basis of the state’s strong interest (citing both Rowan and Pacifica Foundation) in shielding individuals from unwanted speech in their homes.⁶¹Frisby v. Schultz, 487 U.S. 474, 484–85 (1988). However, all of those cases involve the home, where special privacy considerations (quite aside from the First Amendment) obviously exist. Outside of the home, Lehman remains the only significant precedent applying concepts of “captive audiences,” and truth be told under the modern (post-1974) public forum doctrine, concepts of captive audiences are likely unnecessary to uphold the City of Shaker Heights’s subject-matter-based, but viewpoint-neutral, restriction on speech in a nonpublic or limited public forum.⁶²Minn. Voters All. v. Mansky, 585 U.S. 1, 12–13 (2018).

The Court’s decision in Snyder also supports the proposition that the captive audience doctrine has, in recent years, been limited to the home. When the plaintiff in Snyder raised a captive-audience argument in favor of restricting the Westboro Baptist Church’s funeral protests, the Court dismissed the idea that a father might be a captive audience at his son’s funeral by invoking Cohen’s holding that the burden was on Mr. Snyder to “avert[] his eyes.”⁶³Snyder v. Phelps, 562 U.S. 443, 459–60 (2011) (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 210–11 (1975)). When posed with a captive-audience argument, the Snyder Court strongly suggested that that doctrine was largely restricted to speech intruding into the home, citing Rowan and Frisby.⁶⁴Id. It is true that in its discussion the Court also referred to the fact that when driving to the funeral, Snyder could only see the tops of Westboro’s signs;⁶⁵Id. at 460. Snyder saw the content of the signs later that evening on television. Id. at 449. but, there is no indication in the Court’s opinion that the result would have been different if Snyder had seen the signs, so long as the Westboro demonstration did not actively interfere with or disrupt the funeral.

Why is it that a Court that is so ready to recognize a robust right not to speak—one that operates against the state and listeners—seems to be unaware of the possibility of a similar right not to listen (at least outside the listener’s home) as against insistent speakers? The answer, I would posit, lies in the much-neglected interaction between speakers’ and listeners’ rights. In particular, recognizing a right not to listen raises the problem of how to reconcile a speaker’s interest in reaching a particular audience, with a listener’s interest in not being part of that audience. Moreover, the leading scholarly discussion of a putative right not to listen similarly adopts a unilateral rather than a relational approach.⁶⁶Caroline Mala Corbin, The First Amendment Right Against Compelled Listening, 89 B.U. L. Rev. 939 (2009). In that article, Caroline Mala Corbin makes a compelling case, based both on the autonomy interests of listeners,⁶⁷Id. at 982–93. and on more instrumental concerns about democratic self-governance,⁶⁸Id. at 993–96. for a First Amendment right not to listen, and I am happy in this article to accept and build upon that analysis. But she does not address the implications of such a right for the corresponding rights of speakers, or the relationship between what she treats as independent rights of speakers and listeners. We will therefore turn to that issue next.

2. A Right to Be Left Alone

In evaluating the nature of a right not to listen as against speakers, the crucial initial insight is that when a listener positively objects to being exposed to the speaker’s message, a conflict arises between a speaker’s right to choose her audience, and a listener’s right to choose her speakers/messages. In that situation, the Supreme Court, in cases such as Cohen and Snyder, seems to assume that unless the speaker and speech are intruding into the home, a speaker’s interest in expounding her message to any and all must prevail over a listener’s desire to not listen, and to be left alone. But the Court gives no explanation in any of these cases for why this is so, other than generalized references to the need for robust public discourse. And because the Court has never addressed, much less recognized, a right not to listen outside the home, it does not seem to realize that the situation potentially poses a problem of competing constitutional interests, not just a speaker’s right prevailing over general societal interests. But in fact, for all the reasons already stated there are strong reasons to recognize constitutionally grounded listeners’ interests in such contexts, which makes some effort towards reconciliation necessary.

In seeking to reconcile speakers’ and listeners’ rights when they potentially conflict, it is absolutely essential to recognize the deeply interrelated nature of those rights—something the Court has failed to do. As discussed earlier, speakers and listeners are just two sides of the same expressive coin; indeed, it might be said that there are not two rights at issue here, but rather one joint right to engage in/receive expression. But as in so many other situations, when joint rights holders—or for that matter, joint property owners—disagree, resolving such conflicts is extremely difficult.

Nonetheless, recognizing the joint roles of speakers and listeners in expression does lead to some important insights. Most importantly, recognizing the relational nature of freedom of speech strongly suggests that there is little to no social value associated with speakers who address specific listeners against their will. But even here, an important distinction must be made. When unpopular or even deeply offensive ideas are expounded as a part of what I will call “one-to-many” speech, which is to say speech that is available to the public or significant portions of it,⁶⁹I thank Eugene Volokh for coming up with this nomenclature. See generally Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking”, 107 Nw. U. L. Rev. 731 (2013). speakers’ rights must normally prevail over listeners’ rights.⁷⁰For a similar argument, see James Grimmelmann, Listeners’ Choices, 90 U. Colo. L. Rev. 365, 386–87 (2019). The reason is that in that situation, permitting listeners to prevail would scrub public discourse of unpopular ideas, a result which is anathema to the First Amendment. Put differently, permitting individual listeners to invoke a right not to listen to shut down one-to-many speech would amount to an impermissible heckler’s veto.

The analysis is very different, however, when dealing with one-to-one or one-to-a few speech. When speakers address unwilling, individual listeners who have expressed their desire not to be spoken to, the primary goal of continued speech is often no longer to convince or to add to the putative “marketplace of ideas.” It is rather to inflict harm on the listener/victim. As such, it has no legitimate claim to First Amendment protection in light of the greatly diminished speaker interests and very strong listener interest in not listening. It is this principle that led the Court to uphold a ban on targeted, residential picketing in Frisby v. Schultz, while clarifying that a ban on non-targeted residential picketing would almost certainly be invalid.⁷¹Frisby v. Schultz, 487 U.S. 474 (1988). The Court seemed to be assuming, reasonably in my view, that targeted picketing was overwhelmingly likely to be one-to-one speech, while nontargeted picketing was one-to-many. Its error was to assume in Frisby and other captive audience cases that a listener’s interest in avoiding one-to-one speech is limited to the home.

The very idea that speakers have some sort of First Amendment right to thrust their speech on unwilling listeners is based on a rigid, “individual rights” based approach to First Amendment analysis, which does not sufficiently account for complexity. Once one recognizes the interpersonal and associational nature of communications as a joint enterprise between speaker and audience, it should be obvious that no speaker has a “right” to thrust their views on unwilling audience members any more than an individual has a right to insist on joining a First Amendment association in which they are not welcome.⁷²Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000). To posit such a right—as the Supreme Court appears to in cases like Cohen and Snyder—is to posit a personal right on the part of individuals to try to persuade or convert other individuals to the speakers’ beliefs against their will, not as a part of public debate and discourse, but as a part of a personal conversation.

But where could such a right possibly arise from? If, as I have posited, the “freedom of speech” protected by the First Amendment is an interpersonal, relational concept, then the right surely does not arise from the First Amendment. After all, we do not understand any constitutional right to encompass an entitlement to coerce others—the Second Amendment may protect gun ownership,⁷³District of Columbia v. Heller, 554 U.S. 570 (2008). but it does not protect the stick up. And it must be remembered that the First Amendment only protects speakers from censorship or silencing by the state, not from censorship by other private individuals.⁷⁴Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 808 (2019). Recognizing this seemingly mundane point, however, points a way towards how we might reconcile a posited right to be left alone with a speaker’s right to their chosen audience, all the while bearing in mind important First Amendment limits on state power.

C. Reconciliation: The State as Referee

What then, is the role of the government when a speaker seeks out a specific audience, but that audience is not willing to listen? And in particular, because (as noted earlier) listeners have a limited ability to engage in self-help (at least outside the home) vis-à-vis a persistent speaker, is there a role for the government in empowering unwilling listeners?

In that regard, one conclusion follows easily from basic First Amendment principles. Because “above all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,”⁷⁵Police Dep’t. of Chi. v. Mosley, 408 U.S. 92, 95 (1972). it is clear that the government may not itself decide, purportedly on behalf of unwilling listeners, that speech of a specific content or viewpoint will be unwelcome. That role lies solely with the listeners themselves, and for the government to take on the role of proxy censor could very easily become a vehicle for censoring speech the government itself disfavors. Indeed, even when empirically it seems very likely that a targeted audience will not want to be exposed to particular speech—for example, anti-abortion speech directed at abortion clinic patients, or anti-military protests directed at attendees at a military funeral—it remains true that the government’s role cannot be to silence the speech on the assumption that it will be unwelcome. This is why the rule against content discrimination remains in place, and should remain in place, even in particularly sensitive situations such as the home, reproductive health care facilities, and funerals.

That said, however, once one recognizes that speakers have no First Amendment right, free of government regulation, to foist themselves upon unwilling listeners—and indeed, that listeners do have legitimate interests in avoiding undesired speakers or content—it seems clear that the government has a legitimate role to act as facilitator, assisting listeners to invoke their “right” to be left alone—or perhaps better put, their desire not to engage in a communicative relationship with a particular speaker. For that reason, there should be no constitutional problem with the state creating mechanisms that enable listeners to communicate to speakers that they desire to be left alone. There should also be no First Amendment barrier, assuming the listener(s) do invoke their First Amendment interest in being left alone, to the government penalizing a speaker who nonetheless persists in pursuing their unwilling victims. In that situation, the speaker has no First Amendment rights at stake, so a penalty is perfectly constitutional.

To be clear, the government has no obligation to create such a mechanism. Since unwilling listeners have no First Amendment rights against private speakers, they have no constitutional claim to be left alone. But what should be recognized is that in the context of willing speakers and unwilling listeners, or vice versa, given the relational nature of the “freedom of speech,” neither party has a constitutional right at stake, and so some forms of government interventions should not be barred.

Putting this insight in doctrinal terms argues for the courts to recognize a separate category of unprotected speech that is based not on the unprotected content of the speech (as with obscenity, “true threats,” etc.), but on the fact that it is foisted (exclusively) upon unwilling listeners after they have invoked their desire not to listen. Whatever one calls this category—harassment, stalking, or something else—it would permit punishment by the state purely upon proof that the speaker was made aware of their audience’s desire not to listen but nonetheless continues to communicate.

Needless to say, however, for reasons already discussed, any mechanism designed to protect listeners’ desires to be left alone cannot be invoked in one-to-many speech situations, in which there are other, willing listeners in the broader audience who would be deprived of their access to speech. In this situation, “freedom of speech” does exist, and so silencing the speaker will violate both the speaker’s and the willing listeners’ First Amendment rights. And because the First Amendment presumptively favors speech over silence, it clearly cannot permit letting some unwilling listeners’ rights to trump two other sets of rights.⁷⁶I leave aside the question of whether the mere possibility of the existence of a willing listener should trump an unwilling listener’s rights; my instinct is that that issue is too fact-dependent to be susceptible to abstract analysis. Note that with respect to speech occurring in open public dialogue, such as public protests or speech in the media (including social media platforms), there will essentially always be some willing listeners in the audience, and so recognizing a right to be left alone would never result in suppressing such speech. In other words, recognizing a constitutionally based interest in being left alone has little or no implications for broad, public debate. Importantly, this ensures that all individuals, even the most irascible, will regularly be exposed to viewpoints they reject, and so will have the opportunity to change their minds.

Note that under this view, Snyder v. Phelps was correctly decided. The speech in that case, a public protest by the Westboro Church was a form of one-to-many speech, not speech directed solely or mainly at the victim. Indeed, as noted earlier, the plaintiff in that case, the grieving father, did not even see the signs at the time of the protest.⁷⁷Snyder v. Phelps, 562 U.S. 443, 449 (2011). In that situation, it was impermissible for the state to silence the speakers in order to protect Snyder’s desire to be left alone, because the result would be to silence protected speech as to other listeners. The Pacifica Foundation Court, however, was wrong to uphold the FCC’s restrictions on indecent broadcasting, at least insofar as it relied on the existence of unwilling listeners, because radio broadcasts are a classic form of one-to-many speech (whether protecting children might separately support the rule is a different matter).

Therefore, a right of listeners to be left alone should not impact public debate or cleanse it of unpopular or offensive ideas. In the context of privately communicated speech, however, the implications of the above analysis are significant. It means that individuals who insist on repetitively speaking to their chosen audience/victim(s) after the listener has invoked their right to be left alone have no First Amendment rights—and so can be prosecuted without raising constitutional concerns. It also means that in a myriad of other situations in which the Court has suggested that the burden must be on listeners to avert their eyes, move on to another place, or simply suffer, the state has a legitimate role to play in reducing that burden so long as it does not impact public debate.

Developing a specific legislative proposal for how state or federal laws might assist unwilling listeners in protecting their desire to be left alone is beyond the scope of this paper. It should be noted, however, that some such mechanisms already exist and have been endorsed by the courts—though they all, unsurprisingly, involve the home. Thus in Martin v. City of Struthers, the Court struck down a city ordinance banning the door-to-door distribution of literature, primarily on the grounds that the city could have achieved its goal of protecting tranquility in the home with narrower means such as a model ordinance that “would make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed.”⁷⁸Martin v. City of Struthers, 319 U.S. 141, 148 (1943). This approach was preferable, the Court said, because such a law “leaves the decision as to whether distributors of literature may lawfully call at a home where it belongs—with the homeowner himself,”⁷⁹Id. which in the language of this essay means in the hands of the unwilling listener. The Court’s decision in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, recognizing a home “resident’s unquestioned right to refuse to engage in conversation with unwelcome visitors,”⁸⁰Watchtower Bible and Tract Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 168 (2002). is to similar effect. The ordinance upheld in Rowan⁸¹Rowan v. U.S. Post Off. Dept., 397 U.S. 728, 738 (1970). permitting mail recipients to refuse to receive additional mail from unwanted mailers is as well.⁸²In Frisby v. Schultz, the residential picketing case discussed earlier, Justice Stevens dissented on the grounds that the ordinance banning residential picketing was overbroad because it covered picketing to which the residents did not object. Frisby v. Schultz, 487 U.S. 474, 497–99 (1988) (Stevens, J., dissenting). His point is a fair one and suggests that the statute at issue regulating residential picketing should have been triggered only when residents of the targeted home clearly communicated to the picketers their desire to be left alone.

It is true, of course, that it is much easier to put up an outdoor “No Solicitation” sign at one’s home—the remedy endorsed in Martin and Watchtower Bible—than in public places. But given the above analysis, there is no good reason to limit the principle established in these cases to the home. Moreover, it is not hard to imagine a law stating that when an individual is addressing another and the listener uses unambiguous language indicating an intent to be left alone, such as “please stop talking to me,” “I don’t want to hear this,” or “leave me alone,” the speaker then will have a legally enforceable obligation to stop speaking to that individual (but not to others, so in one-to-many situations this law would have no impact).

Some clarifications are necessary, however. First, at least outside of the home, invoking the right to be left alone cannot be indefinite—any statute protecting that right must specify a time period after which the invocation expires and has to be re-invoked.⁸³Thanks to Christina Koningisor for this insight. That caveat, like the continuing protection for one-to-many speech, leaves open the possibility that unwilling listeners can and will sometimes change their minds. Further, the period after which invocation by unwilling listeners expires may well vary with circumstances—and again, any statute addressing this issue must specify that. And in this respect, homes are arguably special. No Solicitation signs outside one’s home constitute essentially permanent invocations—though signs can of course be taken down—as did the request to stop mail upheld in Rowan, though of course that too could be revoked. In some settings such as online interactions, one can imagine invocations lasting for weeks or months. But in personal interactions, it might well be reasonable to require reinvocations every hour or two. Details such as these are for legislatures to work out, the results of which should be due a good deal of deference from courts.

To be sure, in evaluating situations in which a speaker’s desire to communicate collides with their audience’s wishes not to be communicated to, and the state has stepped in to protect the listener, courts must tread with caution, bearing in mind the following considerations. First, it is inevitable that the government—in the shape of both legislatures and executive enforcers—will sometimes manufacture unwilling listeners as a tool to silence speech that the government itself objects to. Therefore, courts must examine any listeners’ rights laws carefully to smoke out such censorship (most obviously by insisting that the listener, not the state, identify unwanted speech). In addition, courts themselves must be cautious to not permit their own instincts as to what constitutes “undesirable” or “offensive” speech to color their decisions, by finding listener objections when none truly exists. Thus courts must insist that any enforcement of a listener’s right to be left alone must be accompanied by a clear and unambiguous invocation of that right by the rights-holder themselves.

In short, there are details to be worked out, and there are undoubtedly complexities raised by attempts to legally empower listeners to avoid unwanted speech, especially outside the home. But the crucial point is that there should be no First Amendment objection to government efforts to so empower listeners—with all the caveats laid out above, including in particular the point about one-to-many speech. There are statutory mechanisms available that could achieve those goals. Indeed, as the next Part discusses, some such mechanisms are already in place whose constitutionality has been questioned but should not be, albeit perhaps after some changes are made to reflect concerns discussed above.

III.  Applications

In this Part, we will consider some practical applications of listeners’ rights to be left alone in areas where divisive litigation has been common and courts have struggled mightily to craft consistent and facially plausible solutions.

A. Counterman, Stalking/Harassment, and Fighting Words

The most obvious area in which the above analysis has application is the status under the First Amendment of laws regulating harassment and stalking. The Supreme Court considered this issue in its recent decision in Counterman v. Colorado,⁸⁴Counterman v. Colorado, 600 U.S. 66 (2023). but because the majority completely failed to consider listener interests in its analysis, and as a result failed to distinguish between “threats” cases (which involve the fear of violence) and harassment/stalking cases (which involve unwilling listeners), Justice Kagan’s majority opinion frankly botched the analysis.

Counterman involved a criminal prosecution arising out of a deeply disturbing set of facts. The defendant, Counterman, repeatedly sent Facebook messages to C.W., a local musician whom he had never met.⁸⁵Id. at 70. Some were prosaic, if bizarre (since they were from a stranger), but others were menacing.⁸⁶Id. Ultimately, Counterman was convicted under Colorado’s anti-stalking statute, the relevant part of which makes it a crime to “repeatedly . . . make any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.”⁸⁷Id. (quoting Colo. Rev. Stat. § 18-3-602(1)(c) (2022)). The Colorado courts rejected Counterman’s First Amendment defense on the grounds that his speech constituted unprotected “true threats,” applying an objective definition of a threat as speech which a reasonable person would view as threatening.⁸⁸Id. at 71. The Supreme Court, however, reversed. In a majority opinion by Justice Kagan, the Court held that to prosecute a true threat, the First Amendment required proof of a subjective mental state, in particular recklessness, meaning that the speaker acted with conscious disregard of the risk that the speech at issue would instill fear in the victim.⁸⁹Id. at 79–82.

What is truly odd about this analysis is that Counterman was not actually a case about threats at all; it was a case about unwanted speech. While some of Counterman’s messages may have been threatening, the harassment and stalking aspects of his awful behavior were not dependent on that—they would have existed even if all the messages were prosaic. The Colorado courts presumably applied the true threat doctrine because they reasonably believed that to uphold Counterman’s conviction, they had to pigeonhole it into a category of “unprotected speech” that the Supreme Court had previously recognized, and true threats is such a category.⁹⁰Virginia v. Black, 538 U.S. 343, 359 (2003). Indeed, as Genevieve Lakier and Evelyn Douek explain, since the Supreme Court’s pathbreaking 2010 decision in United States v. Stevens sharply limiting the power of courts to recognize new categories of unprotected speech,⁹¹United States v. Stevens, 559 U.S. 460 (2010). lower courts have been able to uphold anti-stalking legislation only by characterizing the speech at issue as falling within an already recognized category of unprotected speech—generally either “speech integral to criminal conduct” or “true threats.”⁹²Genevieve Lakier & Evelyn Douek, The First Amendment Problem of Stalking: Counterman, Stevens, and the Limits of History and Tradition, 113 Cal. L. Rev. 143, 148–49 (2025). Eugene Volokh similarly argues that under current law, lower courts cannot treat “harassment” as unprotected speech unless it falls within a category such as threats—a position that Justice Alito took in an opinion predating his elevation to the Supreme Court, which has been followed by numerous other jurisdictions.⁹³Eugene Volokh, Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases), 45 Harv. J.L. & Pub. Pol’y 147, 191–92 (2022) (citing Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001)).

All of which is well and good—but it has no relevance to the Supreme Court itself, which of course does have authority to expand the realm of unprotected speech. Even if Stevens indicates that the Court will not recognize new categories of unprotected speech based on the content of the speech absent a historical tradition,⁹⁴Stevens, 559 U.S. at 472. it certainly does not close the door to recognizing factors other than content that might take speech outside of First Amendment protections—such as its unwanted nature. The Supreme Court had an opportunity to recognize such a category in Counterman but failed to do so because it failed to distinguish harassment and stalking from threats.⁹⁵Justice Sotomayor, joined by Justice Gorsuch, were the only members of the Court who seemed to recognize the difference between the stalking behavior in that case and the broader issue of “true threats” in public discourse addressed by the Court. Counterman v. Colorado, 600 U.S. 66, 85–86 (2023) (Sotomayor, J., concurring in part and concurring in the judgment). Yet even they did not take the logical step of simply dismissing Counterman’s First Amendment claims, but rather also ended up stuck in the morass of debating mens rea.

It is quite possible that the Court’s failure to consider harassment/stalking as a separate speech problem from threats was because that is how the parties to the litigation (and the lower courts) posed the issue. But by analyzing the case as it did, the Court has created a serious risk that moving forward, lower courts will treat harassment and stalking issues as co-extensive with the threats doctrine, thereby ignoring the implications of Rowan and the right to be left alone.⁹⁶Cf. State v. Pierce, 887 A.2d 132, 133, 135 (N.H. 2005) (striking down a ban on “communicat[ing] with [a] person . . . with the purpose to annoy or alarm [such person], having been previously notified that the recipient does not desire further communication,” without citing Rowan). If the Court had analyzed the case properly, it would have recognized that because Counterman’s speech was unwanted, and because his victim had invoked her right to be left alone, as she did in that case by repeatedly blocking Counterman on social media,⁹⁷Id. at 70. the existence of a threat was irrelevant. Counterman’s expression was a classic case of repeated infliction of unwanted speech in a one-to-one context, and so there should have been no barrier to his prosecution under a properly drafted statute—though it is unclear whether the actual Colorado statute in that case satisfied those standards.

Nor are the implications of paying attention to listeners’ interests limited to stalking. Most obviously, laws designed to enable listeners to enforce their right to be left alone, such as the Federal Trade Commission’s Do Not Call Registry, are clearly constitutional on this view.⁹⁸National Do Not Call Registry, Fed. Trade Comm’n, https://www.donotcall.gov [https://perma.cc/KXG3-Y8SM]. Similarly, prohibitions on telephone or other harassment under which penalties are triggered when the victim communicates their desire to be left alone also pose no constitutional concerns.⁹⁹Because my analysis is limited to instances in which a victim has invoked her right to be left alone, it does not address the problem of intentional harassment initiated before such an invocation, which many states also criminalize. Addressing that problem would require recognition of either a new category of unprotected speech or recognizing a power to regulate speech based on a combination of content and bad speaker motive, both topics beyond the scope of this paper. More generally, recognizing that speakers have no First Amendment interest in forcing speech onto unwilling listeners opens the door to a wide range of regulations addressing such things as email spam, spam texting, and even junk mail (following in the footsteps of Rowan).

Consider also harassment litigation arising out of campus protests regarding the Gaza war,¹⁰⁰Kathryn Palmer, The Litigation After the Protest Storm, Inside Higher Ed (May 21, 2024), https://www.insidehighered.com/news/governance/executive-leadership/2024/05/21/litigation-after-protest-storm# [https://perma.cc/P7SJ-HCPT]. or complaints by members of Congress that by failing to control such protests campuses permitted harassment of Jewish students.¹⁰¹Jacey Fortin, 5 Takeaways From the Latest Hearing on Campus Antisemitism, N.Y. Times (May 23, 2024), https://www.nytimes.com/2024/05/23/us/college-antisemitism-hearing-protests.html [https://perma.cc/6GRC-A3B7]. Insofar as these harassment claims are rooted in one-to-one speech, such as following students around and yelling slurs or otherwise directing hostile speech at individual students who have demanded to be left alone, the First Amendment under the above analysis provides no protection to such speech. (Whether universities have a legal obligation to protect victims from such speech is, of course, a different matter.) On the other hand, to the extent that claims of harassment are rooted in slogans yelled during protests such as “From the River to the Sea,” which many people consider antisemitic, or the allegedly antisemitic content of signs, this is classic one-to-many speech which cannot be condemned purely because of its unwanted nature; indeed, at least with respect to public universities silencing such speech, it would almost certainly constitute viewpoint discrimination in violation of the First Amendment. The same would be true even regarding calls for genocide that Republican members of Congress such as Elise Stefanik complained about,¹⁰²Annie Karni, Questioning University Presidents on Antisemitism, Stefanik Goes Viral, N.Y. Times (Dec. 7, 2023), https://www.nytimes.com/2023/12/07/us/politics/elise-stefanik-antisemitism-congress.html [https://perma.cc/EST5-N6YW]. since such calls surely would not qualify as unprotected incitement under the stringent test of Brandenburg v. Ohio.¹⁰³Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). After all, for better or for worse, there is no “awful speech” exception to the First Amendment.

Finally, consider the “fighting words” doctrine. In its 1942 decision in Chaplinsky v. New Hampshire, the Court held that so-called “fighting words”—which is to say curse words or insults delivered in person—are not protected by the First Amendment.¹⁰⁴Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). This holding is rooted in assumptions that fighting words are likely to trigger a violent response from their target, and that such a response would be justified.¹⁰⁵Id. The fighting words doctrine has been subject to sharp criticism,¹⁰⁶Kathleen M. Sullivan, Forward: The Justices of Rules and Standards, 106 Harv. L. Rev. 22, 42 (1992). but the Court has yet to abandon it. In truth, though, the assumptions underlying the doctrine seem seriously outdated, and are also highly gendered, based as they are on a “real men” ethos. Based on the reasoning of Chaplinsky alone, therefore, the doctrine probably should be overruled.

On the other hand, it seems likely that in most circumstances fighting words are going to be unwanted speech, from the listener’s perspective. Furthermore, the typical fighting words situation involves one-to-one speech (indeed, it is doubtful if the fighting words doctrine would apply to one-to-many speech).¹⁰⁷Cf. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (raising, but declining to resolve, the issue). If, however, a target of fighting words expresses to the speaker a desire to be left alone, then any subsequent speech by that speaker would, under my approach, violate the right to be left alone, and so become unprotected. Admittedly, this approach to fighting words does not address the “first blow” of curse words spoken only once; but it does have the advantage of not resting on dubious assumptions.

B. Hill, McCullen, and Avoiding Offense

Another area in which conflicts between speakers and listeners regularly arise is in the context of protests and other expression near health care facilities that provide abortion services. The difficulty arises because on the one hand, the speech of protestors and others—whether pro- or con-abortion rights—is obviously speech on important, controversial, and politically charged topics, and so receives the highest level of First Amendment protection. But on the other hand, it seems reasonable to assume that most members of the audience for this speech—who are overwhelmingly employees or patients of the relevant clinics—would prefer not to hear the speech, sometimes strenuously so. Therefore, courts and legislatures struggle with how to address these conflicts.

While First Amendment cases involving speech near abortion clinics, even in the Supreme Court alone, are myriad, I will focus my discussion on two of the most important and controversial of them. The first is Hill v. Colorado.¹⁰⁸Hill v. Colorado, 530 U.S. 703 (2000). Hill involved a challenge to a Colorado statute that limited speech within one hundred feet of the entrance to a healthcare facility.¹⁰⁹Id. at 707. In particular, the law prohibited any person within that area from approaching within eight feet of another person without their consent “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.”¹¹⁰Id. (quoting Colo. Rev. Stat. § 18-9-122(3) (1999)). Characterizing the issue before it as whether this law “reflects an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners,”¹¹¹Id. at 714. the Court ultimately upheld the statute. In doing so, the Court relied heavily upon the government’s interest in protecting an “unwilling listener’s interest in avoiding unwanted communication,” citing Frisby and Rowan.¹¹²Id. at 716–17.

Justice Scalia’s dissent took sharp issue with this reasoning. He argued that because the Colorado statute was based on the assumption that only speech within the statutory prohibition—“protest, counseling, and education”—was likely to be unwelcome, the law was content-based and so invalid.¹¹³Id. at 747–48 (Scalia, J., dissenting). At least as to this point, it should be noted, Justice Scalia’s argument is entirely consistent with my analysis set forth above (and concomitantly, the majority’s is not). The State may not decide for itself what speech is unwelcome, and insofar as Colorado did so, its law was invalid.

But Justice Scalia did not stop at this point. He went on to argue that any law targeting unwanted communications was automatically content-based, because the law was triggered by the communicative impact of the unwelcome communication. As such, he would have invalidated any such law.¹¹⁴Id. at 748 (Scalia, J., dissenting). But that goes a step too far, insofar as it suggests that speakers have a right to impose their speech on others when their audience has actively asserted a desire not to listen. In a later abortion case (discussed next), Justice Scalia suggested that his argument that the government had no legitimate interest in protecting people from unwanted speech was limited to restrictions on speech “in the public streets and sidewalks.”¹¹⁵McCullen v. Coakley, 573 U.S. 464, 505 (2014) (Scalia, J., concurring in the judgment). But again, Justice Scalia is off the mark. The key question is not where the speech occurs, but whether the speech is directed solely at unwilling listeners, as opposed to a broader audience (in other words, one-to-one versus one-to-many). Certainly, in many instances, including Snyder, it is reasonable to assume that speech in public places is directed at the public. But that assumption does not hold in the context of all anti-abortion protests, in which the speech is sometimes directed solely and directly at often-unwilling employees and patients. In Snyder, the Westboro Baptist Church sought out a broader audience for their protest by contacting the press and drawing attention to themselves; it is therefore doubtful if the protest would have proceeded if no one aside from funeral attendees had shown up (remember that the plaintiff in Snyder did not even see the speech at the time of the protest). But the same is very much not true of anti-abortion protests, which regularly occur without any broader public presence, and which are sometimes, though certainly not always, designed and intended to cause emotional harm to their “audience.”

Now consider the Court’s most recent, significant decision in this area, McCullen v. Coakley.¹¹⁶Id. at 464. There, the Court unanimously invalidated a thirty-five foot “buffer zone” that Massachusetts mandated around the entrances of abortion clinics, in which no one was allowed to enter or remain in, except for specific purposes such as simply walking through, people on clinic business, and law enforcement and other public functions.¹¹⁷Id. at 471. The Court, however, divided sharply on its reasoning. A five-Justice majority (with Chief Justice Roberts writing) found the law content-neutral but nonetheless concluded that it failed intermediate scrutiny.¹¹⁸Id. at 485, 497. The concurring Justices (led again by Justice Scalia) would have invalidated the law as a content-based restriction on speech.¹¹⁹Id. at 502–05 (Scalia, J., concurring in the judgment).

What is interesting for our purposes is that in the course of finding content-neutrality, even the majority conceded (without mentioning Hill, oddly) that if the Massachusetts law had been “concerned with undesirable effects that arise from ‘the direct impact of speech on its audience’ or ‘listeners’ reaction to speech,’ ” it would have been content-based.¹²⁰Id. at 481 (quoting Boos v. Barry, 485 U.S. 312, 321 (1988)). And Justice Scalia in his concurring opinion of course agreed with this point (while lambasting the majority for not expressly overruling Hill).¹²¹Id. at 504–05 (Scalia, J., concurring in the judgment). The only issue on which the Justices disagreed was whether this was, in fact, the actual purpose of the Massachusetts law.

But unanimous or not, the Justices seem simply wrong on this point. Certainly, anti-abortion speakers have a right to make their case to the public, even if the ways in which they do so are distasteful or offensive. And certainly, the state has no interest in purging their speech from public debate, including in one-to-many speech in particular, simply because some members of the audience object to it. But to suggest that the state has no interest in protecting unwilling speakers at all is just wrong, in giving no weight to listener interests and failing to distinguish between public debate (meaning one-to-many speech) and private speech (meaning one-to-one speech).

In short, the bottom line is that insofar as the Colorado and Massachusetts laws in Hill and McCullen were based on the state’s assumption that anti-abortion speech is unwelcome, the Court was wrong to uphold the Colorado law and correct to invalidate the Massachusetts one. And the Justices are, to reiterate, also clearly correct that speech cannot be expunged from public debate simply because it might offend or discomfit some who hear it. But by going further and suggesting, as Justice Scalia did in Hill and all the Justices did in McCullen, that the state has no interest in enforcing listeners’ expressed preferences to be left alone, they are just wrong. The question of how a state might design a mechanism to enforce those expressed preferences has already been discussed; but for the purposes of this discussion the key point is that the Court appears in these cases to be conflating two entirely separate questions: the exclusion of offensive speech from public debate, which is impermissible, and the enforcement of listeners’ expressly invoked right to be left alone, which is not.

C. Regulating the Internet

In the summer of 2024, the Supreme Court issued an opinion in Moody v. NetChoice, LLC.¹²²Moody v. NetChoice, LLC, 603 U.S. 707 (2024). The case involved challenges to two statutes, one enacted in Florida and the other in Texas, which both regulated the content moderation practices of social media platforms. In particular, the Florida law restricted the power of such platforms to moderate posts by “journalistic enterprise[s]” and posts by and about political candidates.¹²³Id. at 720. The Texas law more broadly forbade platforms from moderating content based on the viewpoint expressed in a post or the viewpoint of the poster.¹²⁴Id. at 721. Both laws also granted users certain procedural rights when their posts were moderated,¹²⁵Id. at 720–21. but those aspects of the laws are less relevant to this article. The Supreme Court ultimately declined to resolve the claims because the plaintiffs had chosen to bring a facial, as opposed to as-applied, challenge, and both lower courts had failed to apply the proper standard for facial challenges.¹²⁶Id. at 723–26. But in the course of providing instructions on remand, a solid majority of the Court made it clear that the First Amendment provided strong protections for platforms’ editorial choices in the form of content moderation.¹²⁷Id. at 726–40. As such, the Court was quite clear that if platforms chose to bring as-applied challenges to the application of at least the Texas law to their moderated “feeds” or homepages, the challenges were very likely to succeed.¹²⁸Id. at 740–43.

The majority’s reasoning in NetChoice was clearly correct as a First Amendment matter¹²⁹Ashutosh Bhagwat, Do Platforms Have Editorial Rights?, 1 J. Free Speech L. 97 (2021). and is more than sufficient to sustain properly framed challenges to the Texas, and, truth be told, Florida, laws. But a focus on listener interests suggests that there is something more fundamentally problematic about Florida’s and Texas’s approaches to regulating platforms. The laws of both states are rooted in the basic assumption that legislators (and Governors) know best what content listeners/users should and should not be exposed to. But that assumption and approach are antithetical to First Amendment principles. It is for individuals, not the state, to decide what expressive interactions they wish to participate in.

A much better approach would be one proposed by a group of researchers at Stanford University, led by Francis Fukuyama, which seeks to introduce competition and choice in “middleware,” meaning the software that that performs editorial and content moderation functions on platforms.¹³⁰Francis Fukuyama, Barak Richman, Ashish Goel, Roberta R. Katz, A. Douglas Melamed & Marietje Schaake, Report of the Working Group on Platform Scale 30–38 (Stanford Cyber Policy Center 2020), https://cyber.fsi.stanford.edu/publication/report-working-group-platform-scale [https://perma.cc/B29N-PUXQ]. Requiring platforms to permit users to pick their middleware of choice from a competitive menu of options empowers users/listeners to choose what speech to consume, and what not to consume, and so such a law would advance listeners’ rights. Of course, such a legal requirement would still burden platforms’ editorial rights, but in a less blatantly biased (and political) manner than Florida and Texas sought to do and so might be constitutionally defensible.¹³¹How a challenge to such a law should be resolved is beyond the scope of this paper.

Another area in which a listener-centric approach yields important insights is in regulations restricting targeted advertising. For example, Article 28(2) of the European Union’s Digital Services Act (“DSA”) prohibits platforms from delivering targeted advertising to users who are minors based on their personal data.¹³²Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act), Art. 28(2), https://eur-lex.europa.eu/eli/reg/2022/2065/oj/eng [https://perma.cc/GZF5-8ETT]. While the First Amendment of course does not apply to the EU, given the so-called “Brussels Effect,”¹³³Anu Bradford, The Brussels Effect: How the European Union Rules the World (Oxford 2020). it would not come as a surprise if the United States or one or more states within the United States, including California, followed the EU’s lead in this regard.

But the EU’s approach is misguided. It assumes that targeted advertising directed at children is inherently harmful or invasive. But, in fact, for vulnerable groups such as LGBTQ youth, shielding them from targeted content can cause substantial harm.¹³⁴See Bill Easley, Revising the Law That Lets Platforms Moderate Content Will Silence Marginalized Voices, Slate (Oct. 29, 2020), https://slate.com/technology/2020/10/section-230-marignalized-groups-speech.html [https://perma.cc/S94E-5W4X]. And more fundamentally, it is always better for the state to empower listeners, even minor listeners—who after all enjoy significant First Amendment rights to access information¹³⁵Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 795–96 (2011).—than to make choices for them as the DSA does. For that reason, if the United States or an individual state felt it necessary to restrict targeted advertising directed at minors, it would be much better to empower minors or their parents to opt out of all, or specific forms of, targeted advertising than to enact a flat ban as the DSA does. Admittedly, authorizing parents to restrict targeted advertising could also have deleterious effects on vulnerable youth (sometimes parents are the problem); but that is a difficulty that pervades our society and can only be addressed through broader legal reforms, particularly in family law.

Conclusion

This article argues in favor of recognizing listeners’ rights to, and interests in, not to listen/be left alone. Such a right/interest comes in two forms. The first is a First Amendment right against the state, which generally would prohibit the state from forcing ideological content on unwilling listeners, a proposal that hopefully is not controversial. More difficult is a potential listener interest in avoiding speech from private speakers. Such an interest does not directly implicate the First Amendment, given the lack of state action; but in this paper I argue that nonetheless, the interest is a genuine one rooted in principles of free speech, which should be recognized: a right, as it were, to be left alone. The key implication of recognizing such a right is that it suggests that the First Amendment should not be understood to protect private speech directed at an unwilling listener who has invoked their right to be left alone, at least in a one-to-one situation. This in turn means that the First Amendment does not prohibit the state from adopting measures designed to enable unwilling listeners to invoke and legally enforce their right to be left alone, though nor does it mandate such measures.

This is not to say that protecting the right not to listen, and the right to be left alone, do not raise concerns. For one thing, it will reduce the occasions in which individuals will be exposed to ideas they do not like, which might be to the detriment of the quality of public discourse.¹³⁶Thanks to Erin Miller for this point. Furthermore, a right to be left alone that must be invoked to be effective might well be less useful to the disempowered in our society, who might therefore be harmed if the government is prevented from taking the initiative in shielding them from harmful speech.¹³⁷Thanks to Nelson Tebbe for this insight. But all rights come with a cost; and on balance, this paper argues that recognizing and empowering listener autonomy is worth the cost.

Finally, it should be noted that the analysis above regarding a right to be left alone, and how it can be reconciled with a speaker’s right to an audience, can also be extended to the converse situation—when the right to listen conflicts with the right against compelled speech. Here, too, one faces a potential conflict between two First Amendment interests when a listener desires some information or message but the speaker does not want to share it (perhaps the situation in the Virginia Pharmacy litigation). In this situation, as noted earlier, normally the government cannot force speakers to communicate because of the compelled speech doctrine. But as with a right to be left alone, it may well be that the government has a legitimate role in facilitating voluntary relationships between willing speakers and listeners, and in incentivizing reluctant speakers on behalf of listeners. But that is another, and complicated, topic of inquiry.

INTRODUCTION

Fear changes lives. And for this reason, fear sometimes changes the law.

Because of fear’s debilitating effects, the law often forbids behavior that causes its targets to fear for their physical safety. Think of the laws that prohibit threats in order to free their targets “to go about their own lives.”¹Kenneth L. Karst, Threats and Meanings: How the Facts Govern First Amendment Doctrine, 58 Stan. L. Rev. 1337, 1345 (2006). Think too of stalking laws that restrict fear-engendering behavior that “violates basic social norms of privacy and consent by persisting even in the face of a lack of consent.”²Genevieve Lakier & Evelyn Douek, The First Amendment Problem of Stalking: Counterman, Stevens, and the Limits of History and Tradition, 113 Calif. L. Rev. 143, 190 (2025).

A different type of fear—speakers’ fear of the government’s punishment—shapes pivotal First Amendment doctrine. The U.S. Supreme Court focused on this fear in Counterman v. Colorado when it held that the First Amendment requires the prosecutor in a “true threats” case to establish the speaker’s recklessness—that is, that the speaker “consciously disregarded a substantial risk” that his statements would make his target fear for her physical safety.³Counterman v. Colorado, 143 S. Ct. 2106, 2111–12 (2023). In the interest of full disclosure, I note that I served on the team representing the state of Colorado in Counterman before the U.S. Supreme Court. In so holding, the majority underscored that requiring such proof “reduc[es] an honest speaker’s fear that he may accidentally [or erroneously] incur liability,” thus “provid[ing] ‘breathing room’ for more valuable speech.”⁴Id. at 2115 (quoting United States v. Alvarez, 567 U.S. 709, 733 (2012) (Breyer, J., concurring)).

But this doctrinal choice is not without its costs, costs borne by the many targets of threats who lack access to evidence of the speaker’s interior mental state. This is the case, for example, of “[a] delusional speaker [who] may lack awareness of the threatening nature of her speech; a devious speaker [who] may strategically disclaim such awareness; and a lucky speaker [who] may leave behind no evidence of mental state for the government to use against her.”⁵Counterman, 143 S. Ct. at 2141 (Barrett, J., dissenting); see also Farmer v. Brennan, 511 U.S. 825, 836–37 (1994) (explaining that criminal recklessness requires a subjective showing that the defendant disregarded a risk of harm of which they were aware).

Free speech, of course, is not always free for everyone. A great deal of First Amendment law requires the targets of harmful speech to pay the price for the speaker’s freedom to speak and for the public’s freedom to receive that expression. To illustrate, the Supreme Court’s defamation jurisprudence sometimes requires innocent targets to bear the costs of reputation-damaging falsehoods when those targets cannot prove the speaker’s recklessness.⁶Gertz v. Robert Welch, Inc., 418 U.S. 323, 342–43 (1974). So too did a grieving father pay, with his pain, for the protected expression of speakers who exploited his loss to amplify their religious and political views.⁷Snyder v. Phelps, 562 U.S. 443, 460–61 (2011). Doctrinal choices are sometimes difficult because they require courts to pick between important, but incommensurable, values. When push comes to shove, First Amendment law generally chooses to protect speech on matters of public concern—the speech that lies at the core of the First Amendment—at the expense of its targets’ reputation and at the expense of its targets’ freedom from emotional cruelty.⁸E.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (emphasizing “the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”).

But different, and difficult, doctrinal choices arise when we recognize that speech interests sometimes lie on both sides of a First Amendment dispute, thus requiring courts to choose between important and commensurate values. As we will see, the fear induced by threats and by stalking can silence targets’ expression at least as directly and frequently as the fear induced by the prospect of the government’s punishment silences speakers’ expression. Consider the many targets who stop going out in public, stop using the phone, stop engaging online, stop making music and other forms of art, and stop participating in public life.⁹See infra notes 62–71 and accompanying text. Identifying free speech as a “preferred” constitutional value should thus require attention to the free speech costs of law’s failure to adequately protect the targets of threats and stalking.¹⁰See Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the “Chilling Effect”, 58 B.U. L. Rev. 685, 732 (1978) (describing the First Amendment as a “preferred value”).

Yet an ostensibly speech-protective Supreme Court failed to acknowledge those costs in Counterman v. Colorado, a case that required it to define the contours of the category of threats unprotected by the First Amendment. “True threats” cause their targets to fear for their physical safety—and this fear, in turn, disrupts those targets’ lives.¹¹See R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992) (explaining that the law punishes threats to protect their targets “from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur”). For these reasons, the Supreme Court has long treated true threats as among the handful of speech categories entirely unprotected by the First Amendment.¹²Id. Until Counterman, however, the Supreme Court had never directly engaged the question of how to determine when speech constitutes an unprotected threat. In the meantime, lower courts disagreed over whether the universe of unprotected threats should be determined through a subjective, or instead, an objective inquiry. Some took a subjective approach, requiring the prosecution (or, in a civil case, the plaintiff) to prove that the speaker intended to make his target fear for her physical safety, thus privileging defendants’ speech interests.¹³See, e.g., United States v. Bachmeier, 8 F.4th 1059, 1064 (9th Cir. 2021); United States v. Heineman, 767 F.3d 970, 975 (10th Cir. 2014). A majority of lower courts instead approached the problem from the target’s perspective, adopting an objective approach that asked whether the speaker’s statement would cause a reasonable person in the target’s position to fear for their physical safety, thus privileging targets’ interests—including, but not limited to, their speech interests.¹⁴See, e.g., United States v. Nishnianidze, 342 F.3d 6, 15 (1st Cir. 2003); Heller v. Bedford Cent. Sch. Dist., 665 F. App’x 49, 51 n.1 (2d Cir. 2016); United States v. White, 670 F.3d 498, 509 (4th Cir. 2012); Porter v. Ascension Par. Sch. Bd., 393 F.3d 608, 616 (5th Cir. 2004); United States v. Stewart, 411 F.3d 825, 828 (7th Cir. 2005); United States v. Ivers, 967 F.3d 709, 718 (8th Cir. 2020).

The Supreme Court resolved this question in Counterman by requiring a subjective standard, holding that speech communicating a serious intent to commit unlawful violence constitutes an unprotected “true threat” only when the prosecution can prove the defendant’s recklessness—in other words, the defendant’s conscious disregard of the risk that his statements could make his target fear for her physical safety.¹⁵Counterman v. Colorado, 143 S. Ct. 2106, 2111 (2023). The Counterman Court justified this choice as speech-protective, emphasizing that speakers’ expression might be chilled if they fear punishment under a legal standard too quick to view their speech as threatening.¹⁶Id. at 2113 (“Counterman contends . . . that the absence of such a mens rea requirement will chill protected, non-threatening speech. . . . To combat the kind of chill he references, our decisions have often insisted on protecting even some historically unprotected speech through the adoption of a subjective mental-state element. We follow the same path today, holding that the State must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character.”).

But this was not the only speech-protective choice available to the Court. In choosing to privilege the defendant’s speech over the target’s reasonable fear for their physical safety, the majority also effectively chose to privilege the defendant’s speech over the target’s expression. And just as the public loses valuable speech when the prospect of governmental punishment deters speakers from speaking, so too does the public lose valuable speech when the law permits the silencing of targets’ speech.¹⁷See infra notes 30–31, 62–71 and accompanying text.

To be sure, we should worry about doctrinal choices that deter valuable speech by making a potential speaker fear that the government will punish them for what they intended as a joke or as political rhetoric. Recall, for example, eighteen-year-old Robert Watts, who was convicted of threatening President Lyndon B. Johnson during the Vietnam War for saying to laughing listeners at a political rally on the Washington, D.C. Mall that “I have already received my draft classification as 1–A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.”¹⁸Watts v. United States, 394 U.S. 705, 706 (1969) (per curiam). The Supreme Court overturned Watts’s conviction, holding that his speech constituted “political hyperbole” rather than a “true threat” against the president.¹⁹Id. at 708 (internal quotation marks omitted).

At the same time, however, we should also worry about doctrinal choices that enable the silencing of targets’ expression by insufficiently protecting those targets from reasonable fear for their physical safety. Think now of musician C.W., the victim in Counterman, who received hundreds of disturbing messages from a complete stranger who repeatedly resisted her efforts to block him. As a result, C.W. stopped walking alone, stopped attending public events, and canceled her own public musical performances.²⁰See Counterman, 143 S. Ct. at 2112. Think too of the many threats to journalists and election officials that silence and suppress their work foundational to a free and fair democracy.²¹See infra notes 65–71 and accompanying text. The speech-silencing effects of fear-inducing speech are by no means limited to artists and journalists: they extend to all targets, because all are potential speakers.

Courts often resolve difficult First Amendment disputes—including that in Counterman, which called upon the Court to define the contours of a category of unprotected speech—by concluding that the defendant’s speech interests outweigh the target’s substantial but incommensurate interests in reputation or peace, among other values. But threats and stalking cases present even greater challenges for those who consider speech to be a preferred value because commensurate speech interests lie on both sides of these disputes.

The First Amendment issues triggered by the regulation of fear-inducing speech thus require hard choices between speakers’ and targets’ free speech interests, choices that also affect the public’s access to valuable speech. This Article both criticizes the Court’s approach in Counterman and offers a guide to addressing targets’ expressive interests in threats and stalking cases after Counterman. More specifically, it seeks to foster a mindset for considering the First Amendment problems involving fear-inducing speech that attends to targets’ expression as much as defendants’ expression. To this end, it examines the ways in which threats and stalking can silence targets’ speech and deter their participation in public life, and then considers available choices that attend to targets’—not just defendants’—expressive interests.

I. Fear on Both Sides, Speech on Both Sides

This Part starts by describing concerns that fear of government punishment will cause speakers to censor themselves, thus “chilling” their speech. It then explains how the fear induced by threats and stalking can cause their targets to engage in self-censorship of their own.

A. Speakers’ Fear of the Government

 “A chilling effect,” Frederick Schauer explained, occurs “when individuals seeking to engage in activity protected by the first amendment are deterred from so doing by governmental regulation not specifically directed at that protected activity.”²²See Schauer, supra note 10, at 693 (emphasis omitted). In other words, concerns about chilling effects anticipate that government’s efforts to modify some unprotected behavior will inadvertently chill protected behavior. As Leslie Kendrick observed, “intuition suggests that some legal rules will chill speech. The further a law encroaches on protected speech, the greater the risk that such speech will be penalized. The more likely speakers are to be penalized, the less they will speak.”²³Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 Wm. & Mary L. Rev. 1633, 1638 (2013).

Because chilling effects harm speakers—and the rest of us, too—by stifling the delivery of opinions, facts, and ideas, the Court’s instrumental concerns about chilling effects not infrequently drive its doctrinal choices.²⁴See Monica Youn, The Chilling Effect and the Problem of Private Action, 66 Vand. L. Rev. 1473, 1483 (2013) (“[T]he chilling effect concept does not delineate a discrete, freestanding doctrinal category. . . . [Instead, it informs] a number of procedural, categorical, and substantive doctrines in First Amendment case law.”). Under its defamation jurisprudence, for example, the more valuable the speech potentially chilled by the prospect of defamation liability, the higher the bar for proving the mental state required to establish such liability.²⁵See N.Y.  Times Co. v. Sullivan, 376 U.S. 254, 271–72, 279–80 (1964). This doctrine thus requires defamation plaintiffs who are public officials or public figures to show that a speaker made a defamatory statement with “ ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not”—before they can establish the speaker’s liability for reputation-damaging falsehoods.²⁶Id. at 279–80. The Court has explained this doctrinal innovation as necessary to ensure breathing space for speech critical of those in the public eye or otherwise on matters of public concern—the speech at the core of the First Amendment.²⁷Id. at 271–72.

In the same vein, the Counterman Court explained its doctrinal choice as “based on fear of ‘self-censorship’—the worry that without such a subjective mental-state requirement, the uncertainties and expense of litigation will deter speakers from making even truthful statements.”²⁸Counterman v. Colorado, 143 S. Ct 2106, 2115 (2023) (quoting N.Y. Times, 376 U.S. at 279). In explaining its decision to require the prosecution in a “true threats” case to show the defendant’s reckless mental state, the Court catalogued the ways in which the prospect of the government’s punishment can chill a speaker’s expression by instilling fear of various consequences: “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.”²⁹Counterman, 143 S. Ct at 2116; see also id. at 2115 (“The result is ‘self-censorship’ of speech that could not be proscribed—a ‘cautious and restrictive exercise’ of First Amendment freedoms.”) (quoting Gertz v. Welch, 418 U.S. 323, 340 (1974)).

True, so far as it goes. But nowhere did the Counterman majority similarly detail targets’ fear for their physical safety and the resulting costs of such fear—costs that include the silencing of their speech along with many other life disruptions. The silencing of targets’ speech harms the general public, too, by denying it the expression that targets would otherwise deliver.³⁰See infra notes 64–71 and accompanying text. The majority instead simply noted the “profound harms” imposed by threats without specifying those harms.³¹Counterman, 143 S. Ct at 2117 (noting “the profound harms, to both individuals and society, that attend true threats of violence—as evidenced in this case”). Justice Sotomayor’s concurring opinion was more direct, though brief, in acknowledging the harms to targets: “Stalking can be devastating and dangerous. Lives can be ruined, and in the most tragic instances, lives are lost. . . . 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.” Id. at 2123 (Sotomayor, J., concurring in part and concurring in the judgment) (citation omitted).

Judges (like other human beings) sometimes mask the difficulty of hard trade-offs—making those trade-offs feel considerably easier than they actually are—by failing to identify and weigh the costs of their choices. As Mary Anne Franks observed, courts’ “concern about chilling effects tends to be highly selective.”³²Mary Anne Franks, Fearless Speech, 17 First Amend. L. Rev. 294, 306 (2019). Others have also observed this dynamic. See Danielle Keats Citron, From Bad to Worse: Stalking, Threats, and Chilling Effects, 2023 Sup. Ct. Rev. 175, 180 (2023); R. George Wright, Counterman v. Colorado: True Threats, Speech Harms, and Missed Opportunities, 99 Ind. L.J. 27, 30 (2023). Indeed, even as the Counterman majority described

itself as balancing competing interests, it particularized only speakers’ interests.³³See Counterman, 143 S. Ct at 2119.

The majority’s choice may have been motivated not only by its instrumental concerns about chilling defendants’ expression but also by deontic commitments to punish only morally blameworthy speakers. In this vein, the majority described “reckless defendants” as “morally culpable” because they “have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm.”³⁴Id. at 2118; see also Kendrick, supra note 23, at 1633 (suggesting that courts’ intuitions about moral culpability contribute to their doctrinal choices in this area because “the difficulties of measuring and remedying chilling effects cast doubt on whether they could ever provide the sole justification for the choice of one intent requirement over another”). But moral principles cut both ways here, too, as the targets of threats themselves are often entirely innocent victims who experience life-changing harm regardless of the speaker’s mental state. Think again of C.W., the victim in Counterman whose daily existence and musical career were “upended” by hundreds of disturbing messages from a man she had never met.³⁵Counterman, 143 S. Ct at 2112. Think too of journalists and election officials targeted by threats who live in fear for their, and their families’, safety for simply doing their jobs—jobs foundational to a functioning democracy.³⁶See infra notes 65–71 and accompanying text. That we can identify deontic as well as instrumental concerns on both sides of these disputes adds to the difficulties in deciding them, difficulties that judges should not obscure.³⁷See Seana Valentine Shiffrin, The Moral Neglect of Negligence, in 3 Oxford Studies in Political Philosophy 213 (David Sobel, Peter Vallentyne & Steven Wall eds., 2017) (describing the moral failures of negligence as involving “a failure to take and exercise appropriate responsibility for one’s agency; and, when that failure involves other people, negligence involves a failure properly to recognize and acknowledge their moral significance”).

B. Targets’ Fear for Their Physical Safety

Threats and stalking are related but distinct in important ways. I use the term “threat” to mean speech that causes its target to fear for their physical safety.³⁸See R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992) (explaining that law punishes threats to protect their targets “from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur”). And by “stalking,” I mean repeated and unwelcome conduct, contact, or communication that causes its target fear or other severe emotional distress.³⁹See, e.g., Colo. Rev. Stat. § 18-3-602(1)(c) (2023) (making it unlawful “[r]epeatedly [to] follow[], approach[], contact[], place[] under surveillance, or make[] any form of communication with another person . . . in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress”). Both threats and stalking can inflict life-disrupting fear. But they often do so in different ways: all threats, by definition, involve speech, while stalking sometimes involves only conduct, sometimes only speech, and sometimes a mix of the two.⁴⁰See infra notes 116–18 and accompanying text; see also Lakier & Douek, supra note 2 (“It is this violation of social norms and its disregard for the autonomy of the listener—her right to withdraw from the relationship and to not have to hear what the speaker has to tell her—that makes stalking speech so frightening. It also threatens the target’s sense of agency and freedom because of its (seemingly unstoppable) intrusion into the victim’s private life.”) And although a speaker may be held liable for a single threatening statement or for many, stalking laws impose liability only for “repeated” unwelcome conduct, contact, or communication.⁴¹See infra notes 114–15 and accompanying text.

Fear for one’s physical safety literally changes lives—and not for the better, as fear is among the most debilitating of human experiences. Consider psychologist Abraham Maslow’s hierarchy of human needs.⁴²A. H. Maslow, A Theory of Human Motivation, 50 Psych. Rev. 370, 394–95 (1943) (identifying physical safety as among the most important of human goals and thus among those that “monopolize” our time, energy, and attention). Foundational to this hierarchy is our need for physical survival in the form of food, water, shelter, and physical security: only when this need is satisfied can we pursue higher-level social and emotional needs like intimacy, belonging, self-esteem, confidence, and more.⁴³Id. For these reasons, requiring a target to pay for a defendant’s free speech with fear for their physical safety exacts a significantly higher price than requiring them to pay for a defendant’s free speech with their reputation or with their freedom from emotional cruelty.

Fear-inducing speech inflicts harm both physical and mental. One study, for example, reported “high levels of psychopathology among stalking victims,” whose overall psychological distress was about three times higher than that of the general population.⁴⁴Eric Blaauw, Frans W. Winkel, Ella Arensman, Lorraine Sheridan & Adriënne Freeve, The Toll of Stalking: The Relationship Between Features of Stalking and Psychopathology of Victims, 17 J. Interpersonal Violence 50, 57–58 (2002). Medical evidence demonstrates the life-changing effects of chronic fear that include insomnia and sleep disruptions,⁴⁵Id.; Jaime Rosenberg, The Effects of Chronic Fear on a Person’s Health, Neuroscience Educ. Inst. Cong. (Nov. 11, 2017), https://www.ajmc.com/view/the-effects-of-chronic-fear-on-a-persons-health [https://perma.cc/M9RM-7JSV]. immune system dysfunction,⁴⁶Rosenberg, supra note 45. gastrointestinal issues like ulcers and irritable bowel syndrome,⁴⁷Joe Pierre, How Does Fear Influence Risk Assessment and Decision-Making?, Psych. Today (July 15, 2020), https://www.psychologytoday.com/us/blog/psych-unseen/202007/how-does-fear-influence-risk-assessment-and-decision-making. sexual dysfunction and decreased fertility,⁴⁸Id. and accelerated aging.⁴⁹Mai Stafford, Tarani Chandola & Michael Marmot, Association Between Fear of Crime and Mental Health and Physical Functioning, 97 Am. J. Pub. Health 2076, 2078 (2007) (finding that some study participants had “limitations in physical functioning . . . that were commensurate with that of people 9 years” older). Medical evidence also establishes that chronic fear is associated with generally poor mental health,⁵⁰See Jessica Miles, Straight Outta SCOTUS: Domestic Violence, True Threats, and Free Speech, 74 U. Mia. L. Rev. 711, 735 (2020) (“In addition to an increased risk of physical violence, intimate partner stalking victims suffer from high rates of anxiety and depression.”). with mental health injuries that include anxiety,⁵¹Blaauw et al., supra note 44, at 57. depression,⁵²Id. post-traumatic stress disorders,⁵³Sean Wake, Jolie Wormwood & Ajay B. Satpute, The Influence of Fear on Risk Taking: A Meta-Analysis, 34 Cognition & Emotion 1143, 1148 (2020). panic and obsessive compulsive disorders,⁵⁴Id. impaired formation of long-term memories,⁵⁵Rosenberg, supra note 45. and suicidal ideation.⁵⁶Blaauw et al., supra note 44, at 57 (approximately one third of stalking victims reported repeated thoughts about committing suicide). One study found that those who reported higher levels of fear were 50% more likely to show signs of a mental health disorder and 90% more likely to have symptoms of depression than those who reported lower levels of fear.⁵⁷Stafford et al., supra note 49.

Moreover, the targets of threats and stalking often fear for their physical safety for very good reason. Criminal justice scholar Mary Brewster, for instance, canvassed the experiences of victims of intimate partner violence to conclude that threats served as “a strong and statistically significant predictor of violence.”⁵⁸Mary P. Brewster, Stalking by Former Intimates: Verbal Threats and Other Predictors of Physical Violence, 15 Violence & Victims 41, 50 (2000); see also Miles, supra note 50, at 734–35 (“Research on stalking demonstrates that a strong correlation exists between intimate partner stalking and physical violence, as eighty-one percent of women who were stalked by a current or former intimate partner were also physically assaulted by that partner.”). By causing targets to fear for their physical safety, threats and stalking not only inflict physical and mental health injuries, but also change the ways in which those targets live their lives.⁵⁹See Paul E. Mullen & Michele Pathé, Stalking, 29 Crime & Just. 273, 296 (2002) (“All but six of the one hundred victims [surveyed] reported major lifestyle changes and modified their daily activities in direct response to being stalked.”). Stalking, for instance, often forces its targets to miss work,⁶⁰See Patricia Tjaden & Nancy Thoennes, Nat’l Inst. of Just. & Ctrs. for Disease Control & Prevention, Stalking in America: Findings from the National Violence Against Women Survey 11 (1998), https://www.ojp.gov/pdffiles/169592.pdf [https://perma.cc/BLY2-25T5]; Mullen & Pathé, supra note 59, at 297. to leave their jobs, or their homes.⁶¹See Katrina Baum, Shannan Catalano, Michael Rand & Kristina Rose, Bureau of Just. Stat. Special Rep., Stalking Victimization in the United States 6 (2009) (“One in 7 victims reported they moved as a result of the stalking.”); Mullen & Pathé, supra note 59, at 296–97.

Most relevant to this Article, threats and stalking also change their targets’ lives by causing them to speak less, to speak differently, and to participate less in public life. Indeed, the targets of threats and stalking commonly, and reasonably, respond to threats to their physical survival by making themselves silent and invisible.⁶²See Jonathon W. Penney, Understanding Chilling Effects, 106 Minn. L. Rev. 1451, 1510–12 (2022) (“[T]hreats of violence and physical harm are a powerful force for self-censorship, which trigger deeper psychological states of fear, anxiety, and severe emotional distress that then in turn amplify social conformity.” (footnote omitted)). To illustrate, recall the musician’s experience in Counterman: C.W. stopped walking alone, stopped attending other musicians’ events, and canceled her own performances.⁶³See Counterman v. Colorado, 143 S. Ct. 2106, 2112 (2023). Danielle Keats Citron explains how stalking silences protected expression more generally:

Consider too the many journalists targeted by threats of death or rape. One recent study found that one in ten journalists surveyed had been threatened with death in the preceding year because of their work;⁶⁵Erin C. Carroll, Obstruction of Journalism, 99 Denv. L. Rev. 407, 415 (2022). another found that three quarters of female journalists surveyed reported that “they had experienced online abuse, harassment, threats, and attacks.”⁶⁶Id. at 409. These threats interfere with journalists’ watchdog and educator functions,⁶⁷See Vincent Blasi, The Checking Value in First Amendment Theory, 2 Am. Bar Found. Rsch. J. 521, 538–39 (1977) (explaining the press’s role as a watchdog for government misconduct); RonNell Andersen Jones, Press Speakers and the First Amendment Rights of Listeners, 90 U. Colo. L. Rev. 499, 537–43 (2019) (explaining the press’s functions as educating the public on a wide range of matters and serving as the public’s proxy by observing what the public does not have the time or resources or other ability to observe for itself). inflicting injury not only to their individual targets, but also to a public’s hopes for a healthy democracy. Free press scholar Erin Carroll has detailed more specifically how threats inhibit and distort the reporting that journalists produce and that the public thus receives:

Obstruction operates on at least three levels: the story, the beat, and the pipeline. At the story level, threats and abuse prevent journalists from covering particular events or incidents. At the beat level, perpetual abuse around broad topics like politics, economics, and immigration dissuades reporters from aggressively covering these beats or even covering them at all. At the pipeline level, violence leads reporters to leave or consider leaving the profession entirely.⁶⁸Carroll, supra note 65, at 411.

Illustrating these dynamics more specifically, one study found that 37% of female journalists who reported that they had been threatened, harassed, or attacked indicated they avoided certain stories; 8% changed the content or perspectives of the news that they write about; 16% considered requesting a transfer or different beat and 6% requested a transfer or different beat; and 29% indicated the threats and attacks they received made them think about getting out of the profession.⁶⁹Michelle Ferrier, TrollBusters & Int’l Women’s Media Found., Attacks and Harassment: The Impact on Female Journalists and Their Reporting 39, 44 (Elisa Lees Munoz ed., 2018), https://www.iwmf.org/wp-content/uploads/2018/09/Attacks-and-Harassment.pdf [https://perma.cc/L4ZU-BCE9].

As additional examples, threats against election officials deter those officials from doing work necessary to the democratic self-governance at the core of the First Amendment. A nationwide study of local election officials found that more than one in three of those surveyed reported that they have experienced threats, harassment, or abuse because of their work; more than half reported that they worry about their colleagues’ safety; more than a quarter worried about their own physical safety; and more than a third reported that they knew of local election officials who had left their jobs at least in part because of fear for their safety.⁷⁰The Brennan Ctr. for Justice, Local Election Officials Survey 9, 15, 19 (2024), https://www.brennancenter.org/our-work/research-reports/local-election-officials-survey-may-2024 [https://perma.cc/C3EN-WUDH]. Not surprisingly, many local jurisdictions now report high levels of turnover among their election officials.⁷¹Miles Park, In Some States, More than Half of the Local Election Officials Have Left Since 2020, NPR (Sept. 26, 2023, 5:12 PM), https://www.npr.org/2023/09/26/1200616113/election-official-threats-harassment-turnover [https://perma.cc/7T97-FKL2]; Michael Beckel, Amelia Minkin, Amisa Ratliff, Ariana Rojas, Kathryn Thomas & Adrien Van Voorhis, Issue One, The High Cost of High Turnover 1 (2023), https://issueone.org/wp-content/uploads/2023/09/The-High-Cost-of-High-Turnover-Report.pdf [https://perma.cc/M53Z-NKD3].

II. Attending to Targets’ Free Speech Interests in Threats and Stalking Cases

As Frederick Schauer observed, courts often choose to err on the side of overprotecting defendants’ speech when crafting First Amendment doctrine:

The chilling effect doctrine reflects the view that the harm caused by the chilling of free speech (or other protected activity) is comparatively greater than the harm resulting from the chilling of the other activities involved. And, the logical and necessary mandate of the chilling effect doctrine is that legal rules be formulated so as to allocate the risk of error away from the preferred value, thereby minimizing the occurrence of those errors which we deem the most harmful.⁷²Schauer, supra note 10, at 705.

The Counterman majority made precisely this choice when it required proof of a speaker’s recklessness as predicate to identifying a “true threat” unprotected by the First Amendment.⁷³See supra notes 15–17, 28–31 and accompanying text.

Again, that is a choice—but by no means the only justifiable, and speech-protective, choice. Because speech interests lie on both sides of threats and stalking cases, those cases require courts to choose not only whether to prefer speakers’ expression over incommensurate harms experienced by targets (like harms to their mental and physical health and their quality of life) but also whether to protect the speaker’s expression at the expense of the target’s expression. This Part considers possibilities for treating targets’ and speakers’ expressive interests in threats and stalking cases with at least the same regard.

A. The First Amendment Argument for Symmetrical Concern for Speakers’ and Targets’ Expressive Interests in Threats Cases

Neither the Counterman majority nor Billy Counterman’s own briefing offered any evidence that anyone’s speech—much less Counterman’s—had been chilled by an objective listener-centered approach (like Colorado’s) for identifying unprotected true threats.⁷⁴See Brief on the Merits for Respondent at 38–39, 45, Counterman v. Colorado, 143 S. Ct. 2106 (2023) (No. 22-138) (pointing out that Counterman’s anecdotal discussion of fact patterns offered to suggest an objective standard’s potential for chilling did not involve speech prosecuted under a threats theory or involved speech prosecuted under Counterman’s proposed specific intent standard). As dissenting Justice Barrett observed, “objective tests are effectively the status quo today, yet Counterman still struggles to identify past prosecutions that came close to infringing on protected speech.”⁷⁵Counterman v. Colorado, 143 S. Ct. 2106, 2138 (2023) (Barrett, J., dissenting) (“Before we took this case, the vast majority of Courts of Appeals and state high courts had upheld [statutes that required only an objective showing] as constitutional.”). A number of scholars have noted the limited empirical support for chilling effects concerns. See Suneal Bedi, The Myth of the Chilling Effect, 35 Harv. J.L. & Tech. 267, 307 (2021) (questioning courts’ reliance on chilling effect concerns when crafting doctrine); Jennifer M. Kinsley, Chill, 48 Loy. U. Chi. L.J. 253, 253 (2016) (criticizing chilling effects concerns as making “too may false assumptions about the speakers’ knowledge of the law, their ability to correctly apply the law, and their willingness to conform to the law”); Kendrick, supra note 23, at 1675; Penney, supra note 62, at 1454–55, 1470 (challenging conventional understandings of the chilling effect as “empirically weak” and asserting that most people “are often not sufficiently aware of the law or state activities such that any possible legal harm or sanction could impact their decision about speaking or acting.”); Schauer, supra note 10, at 730 (“While the chilling effect concept appears to be premised upon predictions or assumptions about human behavior, no evidence has been proffered to justify those predictions. It has not been clearly established that individuals are mistakenly deterred or become overly cautious as a result of the existence of particular statutes, rules, or regulations.”). Nevertheless, concern about the law’s chilling effect—that is, the “overdeterrence of benign conduct that occurs incidentally to a law’s legitimate purpose or scope”⁷⁶Kendrick, supra note 23, at 1649 (emphasis omitted).—is legitimate, indeed intuitively powerful, as a background assumption about how the world works.⁷⁷See Joseph Blocher & Reva B. Siegel, When Guns Threaten the Public Sphere: A New Account of Public Safety Regulation Under Heller, 116 Nw. U. L. Rev. 139, 186–89 (2021) (discussing the background assumptions that inform the Court’s constitutional doctrine in various areas despite the lack of empirical evidence for such assumptions). For this reason, the Counterman majority was not wrong to worry about chilling effects even absent anecdotal or empirical evidence of chilling.

But courts committed to robust free speech protections should also credit the equally valid premise that a legal standard that fails adequately to protect the targets of threats and stalking will enable the silencing of targets’ speech. Indeed, the First Amendment case for attending to targets’ free speech interests is at least as strong as that for attending to chilling concerns given that targets’ fear for their physical safety demonstrably deters their expression.⁷⁸See supra notes 62–71 and accompanying text. Just as a speaker’s First Amendment defense need not include evidence that their—or anyone’s—speech was chilled by the prospect that they could be held liable for objectively terrifying statements, a prosecutor or plaintiff need not prove that the target’s—or anyone’s—speech was silenced by their reasonable fear for their physical safety. In short, when developing and applying First Amendment doctrine, courts should weigh the free speech costs borne by the targets of threats and stalking as heavily as the free speech costs borne by speakers chilled by the prospect of the government’s legal action.

The First Amendment argument for this approach gathers additional force when we recognize that targets of threats and stalking cannot meaningfully rely on the traditional self-help remedies of counterspeech and avoidance.⁷⁹See Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”). For example, only 9% of stalking victims surveyed who tried to discourage their stalkers reported that their engagement improved the situation.⁸⁰Mary P. Brewster, An Exploration of the Experiences and Needs of Former Intimate Stalking Victims 47 (1998), https://www.ojp.gov/pdffiles1/nij/grants/175475.pdf [https://perma.cc/7VZM-94AX]; see also James Geistman, Brad Smith, Eric G. Lambert & Terry Cluse-Tolar, What to Do About Stalking: A Preliminary Study of How Stalking Victims Responded to Stalking and Their Perceptions of the Effectiveness of These Actions, 26 Crim. Just. Stud. 43, 60 (2013) (“Our findings suggest that stalking victims who confronted stalkers on their own, regardless of whether they were victims of violent or nonviolent stalking, were likely to perceive that their efforts were ineffective. In some cases, their responses had the opposite effect and the victims reported that the stalking behavior worsened.”). A target’s engagement with a stalker through counterspeech can aggravate and escalate the stalker’s behavior⁸¹See Mullen & Pathé, supra note 59, at 294 (reporting that some “stalkers will react with extreme violence to their victim’s repeated rebuffs”). and can fuel a stalker’s delusions of an actual relationship with the target by “gratify[ing] the stalker’s wishes to have, and to hold onto, a relationship and reinforc[ing] the pursuit.”⁸²Id.; see also id. at 310 (reporting that “any contact with the perpetrator, however intermittent, will reinforce the unwanted behavior”); Mary Anne Franks, How Stalking Became Free Speech: Counterman v. Colorado and the Supreme Court’s Continuing War on Women, Geo. Wash. L. Rev. On Docket (2022), https://www.gwlr.org/how-stalking-became-free-speech-counterman-v-colorado-and-the-supreme-courts-continuing-war-on-women [https://perma.cc/E2BZ-MYZK] (“[S]talkers often sincerely believe that their behavior is welcome. These delusional beliefs make them more, not less, dangerous to their victims.” (footnote omitted)). For these reasons, targets are often counseled not to engage with stalkers.⁸³See Stalking Prevention, Awareness & Res. Ctr., Stalking Safety Strategies 2 (2022), https://www.stalkingawareness.org/wp-content/uploads/2022/05/Safety-Strategies.pdf [https://perma.cc/FP8G-KMH2] (“Consider cutting off any and all communication with the stalker. Many stalkers misinterpret any contact (even negative contact) as encouragement.”). Nor, due to limited resources, can many targets protect themselves through avoidance. “[M]oving to a new home or changing jobs or schools to avoid threatened violence are less likely to be options for domestic violence victims than for other threat victims,” legal scholar Jessica Miles explains.⁸⁴Miles, supra note 50, at 736; see also id. at 736–37 (“The relationship between poverty and the increased likelihood of violence is further supported by research that shows that domestic violence victims with the fewest resources experience the highest rates of repeat abuse.”).

A target-centered approach is not without precedent, as the Supreme Court sometimes chooses to shape categories of less-protected speech in ways that privilege listeners’ interests when those listeners cannot protect themselves from harmful speech through rebuttal or escape: this is often the case when speakers enjoy advantages of information or power (or both) over their listeners.⁸⁵Elsewhere, I have examined settings involving these asymmetries in more detail. See generally Helen Norton, What Twenty-First-Century Free Speech Law Means for Securities Regulation, 99 Notre Dame L. Rev. 97 (2023) (discussing corporations’ speech to investors and shareholders); Helen Norton, Manipulation and the First Amendment, 30 Wm. & Mary Bill Rts. J. 221 (2021) (discussing online platforms’ interactions with their users); Helen Norton, Discrimination, the Speech That Enables It, and the First Amendment, 2020 U. Chi. Legal F. 209 (2020) (discussing employers’ speech to workers); Helen Norton, Powerful Speakers and Their Listeners, 90 U. Colo. L. Rev. 441 (2019) [hereinafter Norton, Powerful Speakers and Their Listeners] (describing asymmetries of information and power between speakers and listeners in several contexts); Helen Norton, Pregnancy and the First Amendment, 87 Fordham L. Rev. 2417 (2019) (discussing the speech of those providing reproductive health care services to pregnant women); Helen Norton, Robotic Speakers and Human Listeners, 41 Seattle U. L. Rev. 1145 (2018) (discussing communications produced by artificial intelligence); Helen Norton, Truth and Lies in the Workplace: Employer Speech and the First Amendment, 101 Minn. L. Rev. 31 (2016) (discussing employers’ speech to workers); Helen Norton, Secrets, Lies, and Disclosures, 27 J.L. & Pol. 641 (2012) (discussing campaign speakers’ and donors’ speech to voters). Recall the Court’s defamation jurisprudence, which requires public officials and public figures to show a speaker’s recklessness (in other words, “actual malice”) before imposing liability for that speaker’s reputation-damaging falsehoods, while relaxing the showing required of private-figure plaintiffs with less ability to remedy reputational harm themselves through counterspeech. More specifically, the Court enables private figures to recover presumed and punitive damages for defamatory falsehoods on matters of private concern without any showing of the speaker’s recklessness.⁸⁶Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (plurality opinion). The Supreme Court also understands the First Amendment to permit defamation plaintiffs who are private figures to recover actual damages for defamatory falsehoods on matters of public concern upon a showing of the speaker’s negligence (but requires proof of the speaker’s actual malice to recover presumed or punitive damages in such cases). Gertz v. Robert Welch, Inc., 418 U.S. 323, 347–50 (1974). While this more target-friendly choice rests in great part on the lower First Amendment value of reputation-damaging falsehoods that do not address matters of public concern, it also turns on private figures’ more limited ability (compared to public officials) to protect their reputational interests through rebuttal:

Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.⁸⁷Gertz, 418 U.S. at 344 (footnote omitted).

When balancing speakers’ expressive interests against private figures’ non-speech (that is, reputational) interests for defamation purposes, the Court thus requires targets to prove no more than a speaker’s recklessness—and sometimes only their negligence. More powerful still is the First Amendment argument for privileging targets’ free speech interests over those of speakers’, especially when those targets cannot meaningfully protect themselves through the traditional self-help remedies of exit and voice. In other words, although recklessness might be an appropriate First Amendment compromise in threats cases if courts were simply balancing defendants’ speech interests against targets’ incommensurate non-speech interests in health and quality of life, recklessness is a much less obvious First Amendment choice if we attend to both parties’ speech interests.

As an illustration, consider the Court’s listener-centered understanding of the First Amendment that treats “false or misleading” commercial speech as entirely unprotected by the First Amendment because of the harm it inflicts on targets’ (consumers’) First Amendment interests in making informed and autonomous decisions regardless of the commercial speaker’s mental state.⁸⁸Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 563–64 (1980) (“The First Amendment’s concern for commercial speech is based on the informational function of advertising. Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity.” (citation omitted)); see also Zauderer v. Off. of Disciplinary Couns., 471 U.S. 626, 638 (1985) (“The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading . . . .”). This listener-centered approach also recognizes that consumers cannot meaningfully protect themselves from these informational harms, because commercial actors have considerably greater access to accurate information about their own goods and services than do consumers.⁸⁹See Norton, Powerful Speakers and Their Listeners, supra note 85, at 446–48 (explaining commercial actors’ informational advantages over consumers). For these reasons, many false advertising laws have long prohibited false or misleading commercial speech—regardless of the commercial speaker’s mental state—because of the harm posed to consumers as the targets of such speech.⁹⁰E.g., Aaron v. SEC, 446 U.S. 680, 696–702 (1980) (Section 17(a)(3) of the Securities Act of 1933 “quite plainly focuses upon the effect of particular conduct on members of the investing public, rather than upon the culpability of the person responsible”); FTC v. Algoma Lumber Co., 291 U.S. 67, 81 (1934) (explaining that advertisers’ lack of culpable mental state does not insulate them from liability under the Federal Trade Commission Act’s bar on deceptive trade practices). 

Because fear—and speech—are on both sides of threats and stalking cases, a robust understanding of the Free Speech Clause supports a standard similarly attentive to targets’ expressive interests. To be clear, my point is not that the First Amendment necessarily requires a listener-centered standard when the free speech interests of speakers and their targets collide. But neither does the First Amendment require a speaker-centered standard when we must choose between speakers’ and targets’ expression. I suggest instead that the First Amendment permits—indeed, supports—governmental choices to privilege targets’ free speech interests in certain settings. To this end, I urge that the First Amendment doctrine of threats and stalking cases treat the free speech costs borne by speakers and targets with at least equal concern. This symmetrical concern for speakers’ and targets’ expression in threats cases recognizes that objective listener-centered standards advance free speech as least as much as subjective speaker-centered standards. This approach thus understands the First Amendment to permit legislatures or courts to choose from a range of speech-protective standards such that the Counterman Court was wrong to deny Colorado’s Supreme Court that choice.

What might this symmetrical concern look like in practice? The rest of this Article identifies some possibilities.

B. The Counterman Court’s Missed Opportunity: Defining Unprotected True Threats Through an Objective Target-Centered Standard

Start with the road not taken by the Counterman majority: the Colorado Supreme Court’s objective target-centered approach for identifying unprotected true threats. Developed in a case involving high school students’ heated late-night Twitter (now known as “X”) argument shortly after a local school shooting, that context-driven standard required courts to consider the surrounding circumstances to determine whether “an intended or foreseeable recipient would reasonably perceive [the statement(s)] as a serious expression of intent to commit an act of unlawful violence.”⁹¹In re R.D., 464 P.3d 717, 721, 731 (Colo. 2020), abrogated by Counterman v. Colorado, 600 U.S. 66 (2023). In my view, this test treated speakers’ and targets’ free speech interests with equal concern by requiring courts to consider multiple factors that attend to both sets of interests.⁹²This Article focuses on the appropriate First Amendment analysis for threats and stalking cases that involve demonstrably direct collisions between speakers’ and targets’ speech interests—and to be sure, this includes attention to the speech-silencing harm of hate speech that takes the form of threats or stalking. See Virginia v. Black, 538 U.S. 343, 363 (2003) (considering cross-burning’s potential as a “particularly virulent” type of threat given its “long and pernicious history as a signal of impending violence”). This Article does not, however, address the First Amendment analysis to be applied to hate speech or harassment that does not cause the target to fear for their physical safety. See Snyder v. Phelps, 562 U.S. 443, 458–59 (2011) (holding that the First Amendment protected hate speech on a matter of public concern in a context that did not cause a target’s potentially speech-silencing fear for their physical safety). Note, however, that objective standards like Colorado’s approach also protect the equality interests of members of marginalized communities who both disproportionately experience enforcement action as speakers and disproportionately experience threats and stalking as targets. See Counterman, 143 S. Ct. at 2122–23 (Sotomayor, J., concurring in part and concurring in the judgment) (“The burdens of overcriminalization will fall hardest on certain groups . . . . 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.”); Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. Rev. 61, 69–81 (2009) (describing how cyberharassment disproportionately targets women and people of color). These factors included:

• The statement’s role in any broader exchange or events—for example, whether the statement “was spontaneous or [instead] responsive to some other communication,” where statements that matched the “overall tone” of a conversation in which it joined were less likely to be experienced as objectively terrifying.⁹³In re R.D., 464 P.3d at 732.
• The medium or platform through which the statement was communicated (including any “distinctive conventions or architectural features”)—where, for example, “prevailing norms in a particular genre” or forum might “recast violent language in a less threatening light.”⁹⁴Id. at 731–32; see also Lyrissa Barnett Lidsky & Linda Riedemann Norbut, #I🔫U: Considering the Context of Online Threats, 106 Calif. L. Rev. 1885, 1910–28 (2018) (discussing how platforms’ architectural features affect the meaning of posts on those platforms and the value of expert witnesses in explaining the meaning of speech in these settings).
• The manner in which the statement was conveyed (“e.g., anonymously or not, privately or publicly”⁹⁵In re R.D., 464 P.3d at 722.)—in which, depending on the context, the speaker’s anonymity and the choice to personally target the statements rather than direct them to a large public audience might cause a reasonable target to experience the statements as threatening.
• Any relationship between the speaker and target—including any history of violence, the speaker’s awareness of the target’s particular vulnerabilities, or the target’s awareness of the speaker’s patterns of speech or emotional state.⁹⁶Id. at 733.
• The audience’s subjective reaction: Contrast Watts v. United States, in which the Court relied in part on the audience’s laughter to identify a statement as protected political hyperbole rather than an unprotected threat⁹⁷Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam).with statements that prompt their audience to report their concerns about potential violence with law enforcement or trusted adults.⁹⁸In re R.D., 464 P.3d at 733.

C. Target-Attentive Approaches to Threats Cases After Counterman

Unless and until the Court chooses to revisit its decision in Counterman, however, an objective context-driven standard is precluded in threats cases, which now require prosecutors and plaintiffs to establish a speaker’s recklessness before imposing criminal or civil punishment.⁹⁹See supra note 3 and accompanying text. That the same First Amendment standard applies to both criminal and civil law settings (like civil protection orders) only raises the expressive stakes of this requirement.¹⁰⁰See Counterman v. Colorado, 143 S. Ct. 2106, 2140 (2023) (Barrett, J., dissenting) (“[T]his case is about the scope of the First Amendment, not the interpretation of a criminal statute. Accordingly, the Court’s holding affects the civil consequences for true threats just as much as it restricts criminal liability.”); see also id. at 2140–41 (canvassing the consequences of a recklessness requirement for targets’ ability to secure civil protections from threats through restraining orders, civil enforcement statutes, and school discipline). Counterman and its limitations now present new choices among available approaches, some more attentive to targets’ free speech interests than others.

First, because Counterman establishes recklessness as a First Amendment floor and not a ceiling,¹⁰¹See id. at 2139 (“The optimal balance strikes me as a question best left to the legislature, which could calibrate the mens rea to the circumstance—for example, higher for the criminal context and lower for the civil.”). legislatures remain free to impose even higher levels of mens rea (like intent or knowledge) as a condition of criminal or civil liability. And some do.¹⁰²E.g., Cal. Penal Code § 76 (prohibiting threats of “any elected public official” made with the speaker’s “specific intent that the statement is to be taken as a threat”); Mass. Gen. Laws ch. 258E, § 1 (2025) (defining harassment (in other words, actionable threats) as “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property”). But Counterman does not require legislatures to so choose. Attention to targets’ free speech interests thus supports the legislative choice, consistent with free speech values, not to require any subjective mental state greater than recklessness, which already leaves targets unprotected in the many threats cases in which targets lack access to evidence of the defendant’s interior mental state.¹⁰³See supra notes 4–5 and accompanying text.

Second, courts’ recklessness determinations in threats cases can sometimes be informed by targets’ experiences. The Counterman majority articulated its recklessness standard as focused on the defendant’s “insufficient concern with risk, rather than awareness of impending harm.”¹⁰⁴Counterman, 143 S. Ct. at 2117. A law requiring the defendant’s “awareness of impending harm,” in contrast, requires the prosecution to prove a defendant’s awareness “that [a] result is practically certain to follow.” Id. (quoting United States v. Bailey, 444 U.S. 394, 404 (1980)). As the Court explained in an earlier decision, “[t]hat risk need not come anywhere close to a likelihood. Speeding through a crowded area may count as reckless even though the motorist’s ‘chances of hitting anyone are far less [than] 50%.’ ”¹⁰⁵Borden v. United States, 141 S. Ct. 1817, 1824 (2021) (quoting Wayne R. LaFave, Substantive Criminal Law § 5.4(f) (3d ed. 2018)). To demonstrate a defendant’s conscious disregard “of a substantial risk” that his statements would cause his target to fear for her physical safety, prosecutors and plaintiffs may present circumstantial evidence of recklessness—that is, evidence that the defendant ignored “obvious” risks or knew of facts that would have made the danger obvious to someone in the defendant’s situation.¹⁰⁶See Farmer v. Brennan, 511 U.S. 825, 842 (1994) (Whether the defendant “had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that [the defendant] knew of a substantial risk from the very fact that the risk was obvious.” (citation omitted)). To be sure, the defendant remains free to introduce evidence that they were unaware of risks that others would find obvious.¹⁰⁷See id. at 844 (“[I]t remains open to the [defendants] to prove that they were unaware even of an obvious risk to inmate health or safety. That a trier of fact may infer knowledge from the obvious, in other words, does not mean that it must do so.”). Whether these risks are obvious to the defendant can sometimes be informed by the target’s experience and behavior. For instance, a defendant’s awareness that his target had repeatedly blocked his calls, texts, or other messages—an awareness perhaps demonstrated by his creation of new accounts from which to message his target—can show that he was aware of “obvious” risks that his target experienced his communications as threatening. So, too, could his awareness that his target had changed her expressive (or other) behavior in response to his statements.¹⁰⁸See Lyrissa Barnett Lidsky & RonNell Andersen Jones, Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World, 23 Va. J. Soc. Pol’y & L. 155, 177 (2016) (predicting that skeptical juries “will rarely accept a defendant’s argument that she truly believed her delusional and defamatory statements”).

Of course, a target could ensure that a speaker was aware of this risk by telling him that she experienced his statements as threatening—but, as discussed above, such engagement can itself be existentially dangerous.¹⁰⁹See supra notes 82–83 and accompanying text. This remains among Counterman’s major deficits in choosing a recklessness inquiry focused on the defendant’s interior mental state rather than threats’ speech-silencing effects on their targets.

D. Target-Attentive Approaches to the Many Stalking Cases That Do Not Involve Threats and Where Counterman Thus Does Not Apply

As explained above, stalking laws protect targets from speech-silencing and life-disrupting fear in ways related to, but distinct from, the protections offered by threats laws.¹¹⁰See supra notes 38–41 and accompanying text. While threats laws address speech that causes its target to fear for their physical safety, stalking laws address fear induced by repeated and unwelcome conduct, contact, or communication. Many stalking cases thus do not, and need not, turn on any allegedly threatening content of the speaker’s communications. In those cases, the default First Amendment rules apply—not Counterman’s recklessness requirement.¹¹¹E.g., State v. Labbe, 314 A.3d 162, 179 (Me. 2024) (“Some stalking prosecutions, like Counterman’s, may rely in whole or in part on words used by a defendant to establish the ‘course of conduct’ and consequent effect upon the victim. It does not follow, however, that the Counterman standard applies to every stalking prosecution in which words are spoken or electronic communication devices are used. Rather, Counterman’s holding is clear: where the State relies on the content of a defendant’s expression as the basis for a stalking charge and to establish harm to the victim, the additional requirement to prove subjective mens rea of recklessness applies.”). Nevertheless, because Counterman addressed threats in the context of a stalking case, the danger remains that courts will inappropriately apply its recklessness standard to stalking cases that do not involve threats.¹¹²Indeed, for a time this was the case in Colorado, until the state supreme court overruled a trial court’s holding that a prosecutor had to prove recklessness in a stalking case even though the prosecutor made clear that he would not be proceeding under a true threats theory. People v. Crawford, No. 24SA226, slip op. at *P2 (Colo. May 12, 2025) (holding that “the charges the prosecution brought here, carefully based on repeated actions—including contacts (i.e., texts, phone calls, and emails) but not their contents— do not require proof that the defendant communicated or otherwise acted with a reckless state of mind.”). In the interest of full disclosure, I note that I served on the team representing Colorado’s Attorney General in an amicus filing before the state supreme court in Crawford.

So the first step in attending to stalking targets’ free speech interests is to make sure that courts understand that Counterman’s recklessness requirement does not apply to stalking cases that do not allege unprotected true threats.¹¹³See Citron, supra note 32, at 204 (“Counterman did not rule that unprotected true threats are necessary for cyber stalking convictions to comport with the First Amendment. But law enforcers could get the [mistaken] impression that now there must be proof of recklessly made threats in any cyber stalking case.”). The second step is to engage targets’ free speech interests when applying the appropriate First Amendment analysis in the many stalking cases that do not involve threats—and where the free speech costs to the target remain substantial while the defendant’s expressive interests are low (since the repeated and unwelcome nature of stalking, rather than its content, often induces fear).¹¹⁴See Lakier & Douek, supra note 2, at 192 (discussing how an endless of barrage of messages can cause fear regardless of their content: “Their mere presence in her inbox, the fact of their constant arrival, that they just did not stop, made [the defendant’s messages] distressing regardless of what they said”).

To illustrate how courts’ assessment of First Amendment challenges to the enforcement of anti-stalking laws can attend to targets’ free speech interests, consider the following fact patterns:

• Defendant (D) repeatedly follows and watches Target (T) as they walk to and from their car to their office, gym, grocery store, and home;
• D calls T every morning and hangs up as soon as they answer;
• D calls T every morning and says, “Hello, beautiful” when T answers; and
• D calls T every morning and says, “Die” when T answers.

Each of these fact patterns involves repeated and unwelcome behaviors that, depending on the circumstances, could cause a reasonable person to experience fear and thus violate a state’s stalking statute.¹¹⁵E.g., Colo. Rev. Stat. § 18-3-602(1)(c) (2022) (making it unlawful “[r]epeatedly [to] follow[], approach[], contact[], place[] under surveillance, or make[] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress”). But some of the fact patterns do so in ways that involve no communication—or if they do involve communication, they do so regardless of the communication’s content.

In short, as this Section explains, the government’s prosecution of conduct normally triggers no First Amendment review. If a defendant nevertheless seeks to challenge the prosecution of conduct on First Amendment grounds, the defendant would have to establish that their conduct was sufficiently expressive to warrant First Amendment protection. If a court determines the conduct to be expressive, then intermediate scrutiny applies. If a defendant challenges the content-neutral prosecution of speech (for example, repeated and unwelcome communications regardless of any threatening content), then again intermediate scrutiny applies. These analyses can, and should, foreground targets’, as well as speakers’, free speech interests.

1. Stalking That Takes the Form of Conduct Only

Fact patterns A (repeatedly following and watching the target) and B (repeatedly dialing the target’s phone number and hanging up without speaking) involve stalking that takes the form of repeated unwelcome conduct, not speech, since the speaker makes no oral or written communication. Consider these additional illustrations of such courses of conduct: a speaker that “send[s] envelopes of unknown white powder to the victim in the mail;” “repeatedly infect[s] the victim’s computers with viruses;” “open[s] unwanted on-line dating profiles under the victim’s identity;” or “arrange[s] every day for deliveries to be made at the victim’s home at all hours of the night.”¹¹⁶United States v. Ackell, 907 F.3d 67, 73 (1st Cir. 2018) (discussing how stalking often takes the form of conduct rather than speech).

Here, the government seeks to regulate what the defendant did, not what they said.¹¹⁷See Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 60 (2006) (explaining that federal law regulates “conduct, not speech” when “[i]t affects what law schools must do—afford equal access to military recruiters—not what they may or may not say”). (As Genevieve Lakier and Evelyn Douek explain, “the term stalking was borrowed from the hunting context to emphasize the similarities between the way a hunter stalks their prey and the practices of surveillance and following that characterized the first well-publicized stalking cases.”¹¹⁸Lakier & Douek, supra note 2, at 147.) Stalking laws thus frequently address conduct with only incidental burdens on expression—triggering (and generally satisfying) no more than intermediate scrutiny.

More specifically, the First Amendment analysis of the government’s regulation of such repeated and unwelcome conduct should either be rational basis review (if the court determines the conduct to be nonexpressive) or intermediate scrutiny (if the court determines the conduct to be expressive).¹¹⁹Rumsfeld, 547 U.S. at 65–66 (considering whether regulated conduct is sufficiently expressive to trigger First Amendment review). Determining whether regulated conduct is sufficiently expressive to trigger intermediate scrutiny generally turns on whether the actor intends to communicate a message through their conduct and whether onlookers reasonably understand the actor to be delivering a message through their conduct.¹²⁰Texas v. Johnson, 491 U.S. 397, 404 (1989); Spence v. Washington, 418 U.S. 405, 410–11 (1974) (per curiam).

When a speaker repeatedly follows and watches their target, do they intend to communicate a message, and does their target understand them to be communicating a message? If, depending on the facts, the answer is “no,” deferential rational basis review will apply to the government’s enforcement.¹²¹E.g., Corrigan v. State, No. A23-1942, 2024 Minn. App. Unpub. LEXIS 604 at *10 (Minn. Ct. App. July 22, 2024) (“[The challenger’s] conviction here was based on his conduct in following, monitoring, or pursuing the other driver and not on the content of his expressions or speech. Thus, the holding in Counterman does not apply to [his] case.”). Perhaps some will take the view, however, that this conduct is expressive. For example, a speaker who repeatedly calls and hangs up on their target without saying anything (maybe only breathing heavily) might seek to send, and might be understood as communicating, a message of possessiveness, hostility, or even love toward the target such that application of the stalking law regulates repeated and unwelcome conduct that incidentally burdens expression.¹²²See United States v. O’Brien, 391 U.S. 367 (1968) (applying intermediate scrutiny to the government’s restriction of expressive conduct and holding that the law satisfied such scrutiny because it was narrowly tailored to the government’s significant regulatory interest). Here, too, the First Amendment analysis should remain attentive to the target’s expressive interests. For example, the application of stalking law to this conduct satisfies intermediate scrutiny when the government’s regulatory interests are unrelated to the suppression of ideas and when the enforcement action instead seeks to address the life-disrupting—including speech-silencing—effects of conduct that has little if any First Amendment value of its own.¹²³See R.A.V. v. City of St. Paul, 505 U.S. 377, 390 (1992) (“Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.”); Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (explaining that state hate crimes statute targets violent conduct unprotected by First Amendment).

The Supreme Court’s analysis of First Amendment challenges to the enforcement of hate crimes laws to punish certain acts of violence illustrates these dynamics. Even when a defendant’s violence might seek to communicate, and be understood as communicating, a message of hatred based on the target’s protected class status, the Court has described hate crimes laws as the government’s constitutionally permissible regulation of conduct.¹²⁴Mitchell, 508 U.S. at 487. Along the same lines, the Court has stated that the First Amendment poses no bar to the government’s regulation of verbal harassment in the workplace that “produce[s] a violation of Title VII’s general prohibition against sexual discrimination in employment practices.”¹²⁵R.A.V., 505 U.S. at 389–90. In these cases, the Court did not state whether the regulated conduct—violent hate crimes and workplace harassment—was sufficiently expressive to trigger intermediate scrutiny, suggesting instead that the conduct did not merit First Amendment protection regardless of the review applied.¹²⁶See id.; see also Mitchell, 508 U.S. at 487. Lower courts have taken similar approaches, for example, when holding that laws prohibiting the physical obstruction of reproductive health care facilities to ensure access to lawful health care services satisfy intermediate scrutiny even though the regulated obstruction may seek to communicate a message and be understood as communicating a message.¹²⁷Terry v. Reno, 101 F.3d 1412, 1419 (D.C. Cir. 1996).

2. Stalking That Takes the Form of Communications That Instill Fear Regardless of Their Content

Turn next to stalking prosecutions of communications that cause fear because of their repeated and unwelcome nature—in other words, because of those communications’ frequency, volume, or persistence rather than their content.¹²⁸See Counterman v. Colorado, 143 S. Ct. 2106, 86 (Sotomayor, J., concurring in part and concurring in the judgment) (“The content of the repeated communications can sometimes be irrelevant, such as persistently calling someone and hanging up, or a stream of ‘utterly prosaic’ communications.” (quoting Id. at 2111–12)); State v. Labbe, 314 A.3d 162, 179–80 (Me. 2024) (“The ‘course of conduct’ for which [the defendant] was indicted and convicted involved a series of electronic communications—phone calls and texts—to the victim during a period of several weeks. Viewed in the context of the record as a whole, the stalking charge here was not predicated on the content of those communications but rather on the act of communicating itself—the repeated, unwelcome contact carried out through electronic devices—even after he was asked to stop; even after his possessions were returned; and even after he had been served with a protection order prohibiting him from having any direct or indirect contact with the victim. . . . This is plainly evident from the record. The content of the calls and messages was not threatening (‘utterly prosaic’); some were devoid of meaningful content; some were unanswered or were merely hang-ups; one consisted of dead air and just breathing.”). This can be the case, for example, of fact pattern C, where the defendant called the target every day with prosaic messages like “Hello beautiful.” Or by leaving a daily message on the target’s answering machine playing the target’s favorite song. Along the same lines, consider a speaker who made:

“multiple [phone calls] throughout the evening, often ‘back-to-back,’ ” and “into the early morning hours,” despite being told that he “needed to stop calling” and “I don’t want you calling this house anymore.” When the complainant unplugged her phone, the defendant then called each of her parents and he was again told not to call. A few days later, he showed up at the complainant’s apartment building and “stood outside for a couple of minutes,” until he was directed to leave by security. Then he returned the following day again, and “security informed him that he was not permitted in the building.” Several months later, he again placed “nonstop calls” to the complainant from 1:30 a.m. to 3:00 a.m., and during that time he again showed up to the complainant’s apartment and tried calling her from the apartment’s call box. He then tried sneaking into the apartment building to get to the complainant, but was again thwarted. Notice that we have not said one word about the content of the defendant’s speech . . . because it was immaterial to his stalking conviction. He could have been trying to sell his victim a vacuum cleaner and the above actions would still have amounted to stalking.¹²⁹Mashaud v. Boone, 295 A.3d 1139, 1161 (D.C. 2023) (citations omitted) (describing the facts in Atkinson v. United States, 121 A.3d 780 (D.C. 2015)).

The content-neutral regulation of such repeated and unwelcome communications again triggers intermediate scrutiny, in which courts again assess whether the restriction is narrowly tailored to serve a significant government interest. Courts undertaking this intermediate scrutiny consider, among other things, whether the government’s content-neutral regulation leaves open ample alternative means of expression.¹³⁰See Frisby v. Schultz, 487 U.S. 474, 484–88 (1988) (upholding a town’s content-neutral ban on picketing targeted at specific homes as narrowly tailored to achieve the government’s significant interest in protecting residential privacy, especially because it left untouched ample alternative means of communication like distributing literature door-to-door). Moreover, the Supreme Court has made clear that the government’s content-neutral speech regulation “need not be the least restrictive or least intrusive means of” achieving its interests; instead, the government’s content-neutral regulation of speech satisfies intermediate scrutiny when it advances a substantial government interest that would otherwise be achieved less effectively.¹³¹Ward v. Rock Against Racism, 491 U.S. 781, 798–99 (1989).

Here, too, this analysis can and should foreground targets’—not just speakers’—free speech interests. The content-neutral application of stalking law to repeated and unwelcome communications regardless of their content satisfies intermediate scrutiny when the government’s regulatory interests are unrelated to the suppression of ideas and when the enforcement action instead seeks to address the life-disrupting—including speech-silencing—effects of repeated and unwelcome communications. That the traditional self-help remedies of exit and voice are so often ineffective—and indeed, frequently dangerous—for their targets further support the enforcement of stalking law as a narrowly tailored response.

3. Stalking That Takes the Form of Threatening Speech

Depending on the circumstances, fact pattern D (daily messages telling the target to “die”) might support a content-neutral stalking prosecution based on the communications’ repeated and unwelcome time, place, and manner, regardless of their content. And depending on the circumstances, fact pattern D may also support prosecution as true threats, which now requires proof of the defendant’s conscious disregard of the risk that his statements were causing his target to fear for her physical safety in addition to proof of each of the statutory elements. Note that these two possibilities require prosecutors and plaintiffs, as a strategic matter, to choose between distinct theories that trigger different First Amendment analyses.¹³²See Lakier & Douek, supra note 2, at 203 (“[L]ike most stalking laws, the Colorado law under which Counterman was convicted not only requires that the emotionally distressing communications be made on multiple occasions but also requires proof that those speech acts have a significant emotionally distressing effect on their recipient, and reasonably so. All of these requirements cabin the reach of the law and ensure that what it punishes is sustained and abusive communication, not an isolated, and therefore potentially misconstrued, speech act.”).

4. Stalking That Involves Both Conduct and Speech

The foregoing examples illustrate how the variety of repeated and unwelcome behaviors that constitute stalking can invite enforcement under different theories that trigger distinct First Amendment analyses. Some fact patterns involve repeated and unwelcome fear-inducing conduct—and, depending on the facts, that conduct may or may not be expressive. Some involve repeated and unwelcome speech that induces fear not because of its content but because of its repeated and unwelcome time, place, or manner. Some involve repeated and unwelcome speech that induces fear at least in part because of its threatening content.¹³³See, e.g., State v. Lindell, 828 N.W.2d 1, 2–3 (Iowa 2013) (upholding stalking conviction based on repeated contact that included both speech and conduct like a “handwritten note and flowers,” “hang-up calls,” physical surveillance, and damage to personal property). And some fact patterns may involve combinations that invite prosecutors and plaintiffs to make strategic choices among multiple theories.¹³⁴Again, theories that do not rely on evidence of speech of a threatening nature as an element of the case do not trigger Counterman’s recklessness requirement. But see Lakier & Douek, supra note 2, at 169 (expressing skepticism that stalking laws can be applied to communications in content-neutral ways, and canvassing the relevant regulatory tradition to suggest the possibility of a category of less-protected “unwanted, persistent and fear-producing speech” in which some showing of mens rea like recklessness might still be required). Whatever the First Amendment analysis, however, it should include attention to targets’, as well as defendants’, expressive interests.

Conclusion

Speakers who fear the prospect of the government’s punishment often express themselves less—or express themselves differently—than they would if they were not fearful. This, in turn, harms the speaker’s and the public’s First Amendment interests by stifling the delivery of opinions, facts, and ideas.

At the same time, targets fearful for their physical safety at the hands of a speaker often speak less, and speak differently, than they would if they were not fearful. And this, too, harms both the target’s and the public’s First Amendment interests.

Fear, and speech, are thus on both sides of threats cases and also many stalking cases. Courts’ doctrinal choices in threats and stalking cases sometimes chill speakers’ expression. And sometimes they instead permit the silencing of targets’ speech. A robust commitment to free speech, in my view, requires attention not only to the speech deterred by legal standards that are too quick to punish speakers but also to the speech silenced when the law fails adequately to protect the targets of threats and stalking from reasonable fear for their safety.

When courts ignore targets’ free speech interests to privilege defendants’ free speech interests, they pretend to make hard First Amendment problems easy. But principled problem-solving requires that we take care to recognize and explain what makes difficult problems difficult, as is the case here, where we must choose between speakers’ and targets’ important free speech interests.

Courts must, and do, make choices all the time when calibrating the categories of unprotected speech (for example, in true threats cases), and when otherwise applying First Amendment doctrine (for instance, in stalking cases that do not allege true threats). The Court’s choice in Counterman to privilege speakers’ free speech interests over targets’ was a choice—but that choice was neither inevitable nor necessarily speech-protective. When we illuminate, rather than obscure, the free speech injuries experienced by the targets of threats and stalking, we can identify doctrinal choices that attend to targets’ expressive interests as well as defendants’.